Burkhart v. Knepper

• Decision Date: 25 March 2004
• Docket Number: Civil Action No. 03-60J.
• Citation: 310 F.Supp.2d 734
• Parties: R. Larry BURKHART, Administrator of the Estate of Susan L. Fyock, Deceased, Plaintiff, v. Craig A. KNEPPER, individually, and in his capacity as a Police Officer of the City of Johnstown Police Department, William Clark, individually, and in his capacity as Police Chief of the City of Johnstown Police Department, City of Johnstown Police Department, a political subdivision, Donato Zucco, individually, and in his capacity as mayor of the City of Johnstown, City of Johnstown, a municipal corporation, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

310 F.Supp.2d 734

R. Larry BURKHART, Administrator of the Estate of Susan L. Fyock, Deceased, Plaintiff, v. Craig A. KNEPPER, individually, and in his capacity as a Police Officer of the City of Johnstown Police Department, William Clark, individually, and in his capacity as Police Chief of the City of Johnstown Police Department, City of Johnstown Police Department, a political subdivision, Donato Zucco, individually, and in his capacity as mayor of the City of Johnstown, City of Johnstown, a municipal corporation, Defendants.

Civil Action No. 03-60J.

United States District Court, W.D. Pennsylvania.

March 25, 2004.

COPYRIGHT MATERIAL OMITTED

Timothy J. Schweers, Pittsburgh, PA, for Plaintiff.

David L. Haber, Weinheimer, Schadel & Haber, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

GIBSON, District Judge.

SYNOPSIS

This case is before the Court on the Defendant Clark's (hereinafter "Clark"), Defendant City of Johnstown Police Department's (hereinafter "Department"), Defendant Donato Zucco's (hereinafter "Zucco") and Defendant City of Johnstown's (hereinafter "Johnstown") joint Motion to Dismiss. For the reasons set forth in following Memorandum Opinion, the Motion to Dismiss is denied in part and granted in part.

FACTUAL BACKGROUND

On June 10, 2002 Susan L. Fyock (hereinafter "Fyock") was shot and killed by Craig A. Knepper (hereinafter "Knepper") when Knepper fired his service revolver at Fyock in the presence of Fyock's four year old son. Complaint ¶ 27. Knepper was employed by the City of Johnstown Police Department at that time. Complaint ¶ 19. Knepper is currently incarcerated. Complaint ¶ 6.

At the time of Fyock's killing, William Clark was the Chief of Police of the Johnstown Police Department and Donato Zucco was Mayor of the City of Johnstown. Complaint ¶ ¶ 7, 8.¹ Clark was Knepper's commanding officer and responsible for executing the "policies, customs, rules and regulations" of the Department and Clark's "edicts or acts ... represented the official policy of the City of Johnstown pertaining to police duties, actions, responsibilities, training, supervision, conduct and all other matters connected with the City of Johnstown Police Department."² Complaint ¶ ¶ 7, 10, 11. Zucco was in charge and control of the Department and Clark and "was responsible for the overall training and conduct of [Clark] as the Chief of Police, and the entire [Department]" and was "responsible by law for ensuring that the City of Johnstown police officers obey the regulations of the [Department] and the laws of the Commonwealth of Pennsylvania and the Untied States."³ Complaint ¶ ¶ 8, 12, 13. Johnstown employed Knepper, Clark, and Zucco at all relevant times. Complaint ¶ 9. Complaint ¶ 19. Knepper "has a history of violent behavior, drug abuse, alcohol abuse and anti-social proclivities which the [Department] knew about or should have known about in the exercise of reasonable diligence." Complaint ¶ 20. Knepper exhibited such violent behavior toward Fyock and this fact was known by the Department. Complaint ¶ 21. "[A]gents, servants and/or employees of [Department] were called several times to [Fyock's] residence in order to investigate the violent behavior which [Knepper] exhibited toward [Fyock], however, no charges were ever filed against him." Complaint ¶ 22. Knepper also "exhibited violent behavior and/or abused drugs and alcohol while on the job as a police officer with [Department], which behavior was known by the [Department] or should have been known by it in the exercise if [sic] reasonable diligence." Complaint ¶ 23. The Department investigated complaints against Knepper regarding his behavior and substance abuse, but never took any official action such as suspension, removal of his firearms or removal from active duty. Complaint ¶ 24. The employees of the Department were aware of Knepper's threats of bodily harm to Fyock. Complaint ¶ 25.

PROCEDURAL BACKGROUND

On March 20, 2003, R. Larry Burkhart (hereinafter "Plaintiff"), as administrator of the Fyock estate, filed a Complaint in this Court. The Complaint sets forth fifteen counts: five counts based upon 42 U.S.C. § 1983, five counts based upon the Pennsylvania action of wrongful death and five counts based upon a Pennsylvania survival action with each Defendant being alleged to be liable under each of the three actions. On May 27, 2003, Defendants, Clark, Zucco, Department and Johnstown filed a Motion to Dismiss and Brief in Support of Motion to Dismiss. On June 16, 2003, Plaintiff filed a Brief in Opposition to Defendant's Motion to Dismiss and the above mentioned Defendants filed a reply Brief in Support of Motion to Dismiss on June 30, 2003. This matter was assigned to the Honorable Kim R. Gibson on October 27, 2003.

ANALYSIS

In analyzing a motion to dismiss under Federal Rule of Civil Procedure 12 (b) (6):

the district court [is] required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. Enters., Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). In determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record. Moreover, a case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); D.P. Enters., 725 F.2d at 944.

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3rd Cir.1994). In considering a motion to dismiss, the Court is not deciding the issue of whether a plaintiff will ultimately prevail but is deciding if the plaintiff is entitled to offer evidence to support claims. Lake v. Arnold, 112 F.3d 682 (3rd Cir.1997); Nami v. Fauver, 82 F.3d 63 (3rd Cir.1996).

I. § 1983 CLAIMS

The Court will first address the § 1983 claims.

Department moves for dismissal of the 42 U.S.C. § 1983 claim in its motion and sets forth a more specific argument in favor of dismissal in footnote number 2 of its brief. As Judge Mencer, formerly of this Court, has held:

While Monell clearly holds that a local government is a person subject to suit, 436 U.S. at 690, 98 S.Ct. at 2036, we reject plaintiffs' argument that each governmental sub-unit or department is a person distinct from the government at large. The City of Erie Police Department is a subunit of the city government and, as such, is merely a vehicle through which the city fulfills its policing functions. See Williams v. Dayton Police Department, 680 F.Supp. 1075, 1080 (S.D.Ohio 1987), citing Shelby v. City of Atlanta, 578 F.Supp. 1368 (N.D.Ga.1984); Elam v. Montgomery County, 573 F.Supp. 797 (S.D.Ohio 1983). The numerous courts that have considered the question of whether a municipal police department is a proper defendant in a section 1983 action have unanimously reached the conclusion that it is not.

Johnson v. City of Erie, Pa., 834 F.Supp. 873, 878-879 (W.D.Pa.1993). Therefore, the Department is dismissed as a Defendant under the § 1983 claim.

The Court moves on to the Defendants Clark, Zucco and Johnstown's (hereinafter referred to as "Moving Defendants") argument regarding the dismissal of the § 1983 claims. The Moving Defendants state that, although the Complaint is unclear as to what theory is being pursued by the Plaintiff, they argue in the alternative the following: 1) that Knepper was not on-duty was not conducting police business nor was he acting under color of law when he shot Fyock and that the acts involving the shooting were part of a domestic dispute; 2) that municipal liability does not exist as the Complaint does not allege a relationship between a policy or custom of Johnstown and the murder of Fyock; 3) that liability could not exist under the State Created Danger Theory because Fyock was not a foreseeable victim in the context of a tort in that the "state" deprived her of the liberty necessary to care for herself; and 4) that liability cannot attach to Clark or Zucco merely because of respondeat superior or their supervisory capacities as "[p]ersonal involvement in the challenged conduct is required" but that liability can attach only upon execution of a policy or custom that "inflicts the injury that the government as an entity is responsible [for] under § 1983." Defendants' Brief in Support of Motion to Dismiss, pp. 4, 6.

In response, the Plaintiff states that his legal theory is the de facto policy of deliberate indifference of the Moving Defendants in failing to properly screen, train, supervise, discipline, transfer, counsel and/or otherwise control Knepper. Specifically, Plaintiff argues that one or more of these actions should have been taken by the Moving Defendants as result of knowing of Knepper's violent behavior, substance abuse, and anti-social behavior exhibited while on the job as well as the history of violent actions toward Fyock. Furthermore, Plaintiff cites to Brown v. Muhlenberg Twp., 269 F.3d 205 (3rd Cir.2001) in arguing that the Moving Defendants tolerated and acquiesced in the "various abuses" committed by Knepper.

The Third Circuit has found that municipal liability can exist in the absence of liability of a police officer:

A finding of municipal liability does not depend automatically or necessarily on the liability of any police officer. Even if an officer's actions caused death or injury, he can only be liable under section 1983 and the Fourteenth Amendment if his conduct "shocks the conscience." Id. The fact that the officer's conduct may not meet that standard does not negate the injury suffered by the plaintiff as a result. If it...