Fought v. City of Wilkes-Barre

• Decision Date: 12 June 2020
• Docket Number: 3:17-CV-1825
• Citation: 466 F.Supp.3d 477
• Parties: Joshua FOUGHT, et al., Plaintiffs, v. CITY OF WILKES-BARRE, PENNSYLVANIA, Joseph Homza, and Marcella Lendacky, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

466 F.Supp.3d 477

Joshua FOUGHT, et al., Plaintiffs,

v.CITY OF WILKES-BARRE, PENNSYLVANIA, Joseph Homza, and Marcella Lendacky, Defendants.

3:17-CV-1825

United States District Court, M.D. Pennsylvania.

Filed June 12, 2020

Kevin V. Mincey, Thomas O. Fitzpatrick, Shabrei Parker, Mincey Fitzpatrick Ross, LLC, Philadelphia, PA, for Plaintiffs.

John G. Dean, Samantha Hazen, Shanna W. Williamson, Elliott Greenleaf & Dean, Scranton, PA, Kristyn R. Giarratano, Mark W. Bufalino, Elliott Greenleaf & Dean, Wilkes-Barre, PA, for Defendants City of Wilkes-Barre, Pennsylvania, Marcella Lendacky.

Jennifer Menichini, Joseph J. Joyce, III, Matthew John Carmody, Joyce, Carmody & Moran, P.C., Pittston, PA, John G. Dean, Samantha Hazen, Shanna W. Williamson, Elliott Greenleaf & Dean, Scranton, PA, Kristyn R. Giarratano, Mark W. Bufalino, Elliott Greenleaf & Dean, Wilkes-Barre, PA, for Defendant Joseph Homza.

John G. Dean, Samantha Hazen, Elliott Greenleaf & Dean, Scranton, PA, for Defendant Joseph Coffay.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

Here the Court considers Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 41). Plaintiffs’ interactions with Defendant Joseph Homza, a police officer with the Police Department of the City of Wilkes-Barre, including encounters with Defendant Homza's canine partner, Chase, form the basis of many of the fourteen federal and state law claims contained in the Amended Complaint.¹ (Doc. 36.) Defendants seek dismissal of all claims based on Plaintiffs’ failure to state a claim upon which relief may be granted. (Doc. 41.) For the reasons discussed below, Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 41) will be granted in part and denied in part.

II. BACKGROUND

Defendant Homza was hired as a Wilkes-Barre police officer in February 2014. (Doc. 36 ¶ 66.) Robert P. Hughes was the Chief of Police at the time. (Id. ¶ 63.) Defendant Marcella Lendacky was appointed Chief of Police for the City of Wilkes-Barre in March 2016. (Doc. 36 ¶ 67.) Defendant Lendacky was responsible for evaluating the officers who applied to be a part of the canine unit. (Id. ¶ 69.) In late summer of 2016, Defendant Lendacky selected Defendant Homza to be a canine handler for the Wilkes-Barre Police Department. (Id. ¶ 68.)

Pursuant to Wilkes-Barre City Police Department Special Order 1.3.9(I)(1)(a), issued on April 23, 2014, by then Chief of Police Hughes, to be considered for assignment to the canine unit a police officer "must have completed three years of service with the Wilkes-Barre City Police Department." (Id. ¶¶ 63-65 (citing Exhibit A, Special Order 1.3.9).) Defendant Homza did not complete the requisite years of service before being selected for the canine unit. (Id. ¶ 66.)

A. Plaintiff Fought

On July 18, 2017, Plaintiff Fought was gathered with friends and other members of the public at Public Square ("Square") located in the area of 47 South Washington Street in Wilkes-Barre, Pennsylvania. (Doc. 36 ¶ 22.) At the time, Defendant Homza was on walking patrol duty at the Square with his K-9 partner, Chase. (Id. ¶ 23.) Defendant Homza approached Plaintiff Fought's group and initiated a pedestrian investigation. (Id. ¶ 24.) As part of his investigation, Defendant Homza requested identification from Plaintiff Fought and the group he was seated with. (Id. ¶ 25.) Plaintiff Fought kneeled down to retrieve his bag and produced his identification as requested. (Id. ¶ 26.) Defendant Homza's K-9 partner began to bark and jump at Plaintiff Fought causing Plaintiff Fought to be startled. (Id. ¶ 27.) Plaintiff Fought expressed concern that Defendant Homza did not have control of the dog and asked Defendant Homza to corral him. (Id. ¶ 28.) While Defendant Homza was checking to see if any in the group had outstanding warrants, Plaintiff Fought casually remarked that he "wouldn't be still standing here" if he did have an existing warrant. (Id. ¶ 29.) Plaintiff Fought and his companions began to collect and retrieve their belongings while awaiting Defendant Homza's return of Plaintiff Fought's identification. (Id. ¶ 30.) Without explanation, Defendant Homza removed the leash from his dog and directed him to lie down. (Id. ¶ 31.) He then walked away from the unsecured dog back toward Plaintiff Fought. (Id. ) At the time of Defendant Homza's approach, Plaintiff Fought had not been charged with a crime and had no reason to believe that he was not free to leave. (Id. ¶ 32.)

Defendant Homza, without warning, then moved to take Plaintiff Fought into custody by pinning him to the ground. (Id. ¶ 33.) Specifically, Defendant Homza approached Plaintiff Fought from behind while Plaintiff was in a kneeling position and used an "arm bar" hold, placing a handcuff on one wrist and using his body weight to force Plaintiff to the ground face-first. (Id. ¶ 35.) After Defendant Homza handcuffed one of Plaintiff Fought's hands, he held onto the handcuffs, tethering Plaintiff and Defendant Homza. (Id. ¶ 36.) While Plaintiff Fought was under the physical control of Defendant Homza, Defendant Homza's K-9 partner, without warning or provocation, attacked Plaintiff Fought by latching onto the right side of his back. (Id. ¶ 37.) Defendant Homza stood by and watched as the dog mauled Plaintiff Fought's back while Plaintiff Fought remained handcuffed and tethered to Defendant Homza. (Id. ¶ 38.) The dog alternated between jumping up and down with Plaintiff Fought's back firmly within his jaws and chewing on Plaintiff Fought's back from a stationary position while Defendant Homza and several civilians stood by watching. (Id. ¶ 39.) Plaintiff had no means of escaping the dog's attack. (Id. ¶ 40.) Defendant Homza ultimately issued the release command and the dog immediately stopped engaging with Plaintiff Fought and retreated to Defendant Homza's side. (Id. ¶ 44.)

The arrest was video recorded via cell phone by civilian bystanders and depicts Defendant Homza's conduct and the subsequent dispatch of numerous backup officers to the scene. (Id. ¶ 45.) The video also depicts Plaintiff Fought on the ground, unarmed and without any active resistance, while Defendant Homza stood over Plaintiff Fought and watched as his dog chewed on Plaintiff Fought's back. (Id. ¶ 46.) Plaintiff Fought, bloodied and without a shirt, was left on the street for an undetermined amount of time without Defendant Homza or any other responding officer offering any medical attention or aid for his injuries. (Id. ¶ 47.) Plaintiff Fought was eventually transported to Wilkes-Barre General Hospital where he had to undergo emergency surgery to close the wound

on his back. (Id. ¶ 48.) After the initial surgery, Plaintiff had several more surgeries and skin graft procedures before his wound could be closed. (Id. ¶ 51.) As a result, Plaintiff Fought is permanently disfigured with scars throughout his body from surgeries and skin grafts. (Id. ¶ 52.)

While still hospitalized, Plaintiff Fought was formally arrested and charged with Resisting Arrest, Disorderly Conduct, and Public Drunkenness. (Doc. 36 ¶ 45.) On October 5, 2017, Plaintiff Fought appeared before the Honorable Thomas F. Malloy, Sr., for a preliminary hearing. (Id. ¶ 15.) All criminal charges against Plaintiff Fought were dismissed. (Id. ) On October 10, 2017, Defendant Homza re-filed the criminal charges against Plaintiff Fought. (Id. ¶ 17.) On January 11, 2018, a preliminary hearing was conducted and the charge of public drunkenness was dismissed for lack of evidence. (Id. ¶ 18.) The charges of resisting arrest and disorderly conduct were held for trial. (Id. ) On June 12, 2018, a criminal jury trial commenced on the charges of resisting arrest and disorderly conduct. (Id. ¶ 19.) On June 14, 2018, Plaintiff Fought's Motion for Judgment for Acquittal was granted by the trial court for the disorderly conduct charge at the close of the Commonwealth's case. (Id. ¶ 20.) On June 14, 2018, Plaintiff Fought was found not guilty of resisting arrest by a jury of his peers. (Id. ¶ 21.)

Following Defendant Homza's incident with Plaintiff Fought, Defendant Lendacky stated to media outlets that "the officer [Defendant Homza] and the K-9 did as they were trained.... The incidents as reported and reviewed at this time are resultant of the regular ongoing training and policy, therefore meaning, the K-9 teams completed their jobs accordingly." (Doc. 36 ¶ 74 (citing Ex. C, "Video Sparks Debate Over Use of K-9 in WB Incident" Citizen's Voice, July 27, 2017).)

Defendants Lendacky and City of Wilkes-Barre had reason to know that neither Defendant Homza nor Chase met the safety requirements for the K-9 Unit. (Doc. 36 ¶ 61.) During Plaintiff Fought's criminal trial, Defendant Homza testified that he and his dog failed to complete the required sixteen hours per month of training. (Id. ¶ 78.)

In an article printed in the Times Leader newspaper, Wilkes-Barre K-9 trainer Paul Price is quoted as saying that Defendant Homza and his dog had failed to "make training sessions because of manpower issues." (Doc. 36 ¶ 79 (citing Ex. D, "More WB Officer Suspensions As Police Dog Sidelined For Biting 3 People" Times Leader, January 11, 2018).) Mr. Price went on to resign from the post, stating that the Wilkes Barre K-9/Officer teams had received little required training and that "[He] can't train people that aren't there." (Id. ¶ 80 (citing Ex. D).) Citing required overtime for the failure to attend K-9 training, Defendant Homza remained on patrol in Wilkes-Barre after the incident. (Doc. 36 ¶ 81.) After Defendant City reportedly conducted an internal investigation of the incident with Plaintiff Fought, neither Defendant Lendacky nor Defendant City imposed any discipline or corrective action for Defendant Homza. (Doc. 36 ¶¶ 89-90.) Defendant Homza and his dog were not temporarily removed from service or required to undergo additional training. (Doc. 36 ¶¶ 91-92.)

B. Plaintiffs Anthony and Kaitlyn...