Hartman v. Bachert, Civ. A. No. 94-CV-0432.

• Decision Date: 31 January 1995
• Docket Number: Civ. A. No. 94-CV-0432.
• Parties: Karen HARTMAN, individually and as the administratrix of the estate of Douglas Paul Hartman, deceased, Plaintiff, v. David BACHERT, Ronald Miller, and the City of Allentown, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

880 F. Supp. 342

Karen HARTMAN, individually and as the administratrix of the estate of Douglas Paul Hartman, deceased, Plaintiff, v. David BACHERT, Ronald Miller, and the City of Allentown, Defendants.

Civ. A. No. 94-CV-0432.

United States District Court, E.D. Pennsylvania.

January 31, 1995.

Nicholas Noel, III, Easton, PA, for plaintiff.

James T. Huber, Allentown, PA, for defendants.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

Plaintiff commenced this action against the City of Allentown, and Officers David Bachert and Ronald Miller, both of the Allentown Police Department, alleging that they are liable under 42 U.S.C. § 1983 for violating the Constitutional rights under the Ninth and Fourteenth Amendments of Deputy Sheriff Douglas Paul Hartman of the Lehigh County Sheriff's Department. The complaint further alleges that defendants are liable under state wrongful death, survival action, and civil rights laws.¹ The gravamen of plaintiff's allegations is that defendants violated Hartman's federal and state rights by failing to protect him adequately during the course of his duties as a Lehigh County Deputy Sheriff. Deputy Hartman, while serving a warrant with the assistance of members of the Allentown Police Department, was killed by the third party upon whom he was serving the warrant. Defendants previously filed a Motion to Dismiss, which this court denied on April 13, 1994. Presently before the court is defendants' Motion for Summary Judgment, filed on November 22, 1994, to which plaintiff filed a reply on December 15, 1994. This court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

"The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir.1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n. 3, 106 S.Ct. 2548, 2552 n. 3, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

II. FACTUAL BACKGROUND

Discovery is now closed and the relevant facts, as gleaned from plaintiff's Amended Complaint and Reply, are as follows. On the morning of July 7, 1992, Deputies Douglas Hartman and Ronald Atwell, of the Lehigh County Sheriff's Department arrived at 1943 East Dent Street in Allentown, a multi-unit apartment building, to serve an arrest warrant upon an individual known as Larry Parker. Deputy Hartman knocked on the door of Parker's second floor apartment several times, identifying himself as a Deputy Sheriff. Although he heard movement inside the apartment, no one responded.

Back outside a few minutes later, Hartman and Atwell saw a man they thought to be Parker attempting to exit the building through the roof, but he soon reentered his apartment. Plaintiff's Brief in Response to Motion for Summary Judgment at 1 (hereinafter "Plaintiff's Reply"); Deposition of Ronald Atwell at 79-80 (hereinafter "Atwell Deposition"). In response to this probable escape attempt, at approximately 9:40 a.m., Hartman and Atwell called the Allentown Police Department as well as the Lehigh County Sheriff's Department to request assistance in serving the warrant. At approximately 9:47 a.m., defendant Officers David Bachert and Ronald Miller of the Allentown Police Department arrived at the scene, while two Deputy Sheriffs from the Lehigh County Sheriff's Department arrived soon thereafter. Apparently, Officer Miller, upon arrival, ordered Officer Bachert to accompany Deputy Hartman in attempting to serve the warrant while Officer Miller accompanied Deputy Atwell to the rear of the building, in case Parker attempted to escape again. Amended Complaint at ¶ 12. Hartman and Bachert then approached the front door of Parker's apartment and knocked again several times. Again they received no response, although they heard movement inside.

Sometime between 9:47 and 9:52 a.m., the door to the apartment swung open unexpectedly and Parker appeared, pointing a handgun directly at Deputy Hartman. A young woman with a baby was also in the apartment. Deputy Hartman grabbed at Parker's wrists in an attempt to wrest the gun from his control. He and Parker struggled for the next minute, and several gunshots were fired, although none struck either Hartman or Parker. Officer Bachert was situated behind Hartman on the stairway and called in on his radio to report that shots had been fired and to request backup. Amended Complaint at ¶ 17. Plaintiff alleges that Officer Bachert remained at the entryway of the apartment during the struggle. Amended Complaint at ¶ 19.

Parker gained control of his gun and retreated into another room. As Deputy Hartman retreated toward the bathroom on his knees, Parker pointed his gun at him from across the room. Officer Bachert was in close proximity to Deputy Hartman at this point but did not enter the apartment. Amended Complaint at ¶ 20. Shortly thereafter, Officer Bachert exited the apartment building.² Deputy Atwell and another Deputy Sheriff who had arrived later both attempted individually to enter the apartment but were directed by Deputy Hartman to leave. Atwell Deposition at 98-100. By this time, more members of the Allentown Police Department, including members of the SWAT team, had arrived on the scene. They began to set up equipment and to query the men who had seen parts of the Parker apartment to get a sense of the layout. Atwell Deposition at 53-58. Between approximately 9:54 and 10:10 a.m., a gun battle ensued between Deputy Hartman and Parker, resulting in the deaths of both men. Amended Complaint at ¶¶ 23 and 24.

III. DISCUSSION

Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights, privileges, or immunities secured by the Constitution or the laws of the United States. It "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). Consequently, plaintiff brings her claim under the Ninth and Fourteenth Amendments to the Constitution.

To state a claim under § 1983, plaintiff must show both that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In this case, no party disputes that defendants were acting under color of state law. The issue we must turn to first, then, is whether the facts surrounding Deputy Hartman's death, as alleged in plaintiff's amended complaint, give rise to a viable Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983.³

The Due Process Clause of the Fourteenth Amendment provides in relevant part "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. This phrase has been understood to encompass both a procedural and a substantive element. See Planned Parenthood v. Casey, ___ U.S. ___, ___, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674 (1992) ("Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years ... the Clause has been understood to contain a substantive component as well...."). The procedural element, which is not at issue here, guarantees that a state may not effect a deprivation of life, liberty, or property without certain procedural safeguards. The substantive element of the clause has a twofold interpretation. First, the clause selectively incorporates provisions of the Bill of Rights, and protects these rights from infringement by state and local governments. Second, the clause bars "certain government actions regardless of the fairness of the procedures used to implement them." Daniels, 474 U.S. at 331, 106 S.Ct. at 665. The substantive element of the clause "prevents the government from engaging in conduct that `shocks the conscience,' or interferes with rights `implicit in the concept of ordered liberty.'" U.S. v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)).

Recently, in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court examined the strictures of substantive due process.⁴ Prior to DeShaney, federal circuit courts were divided over the issue of when, if ever, the failure of state or local governmental authorities to provide an individual with adequate protective services constitutes a violation of the individual's due process rights. The Third and to an extent the Fourth Circuits had endorsed the proposition that if the State is aware of danger to an individual from a third party and undertakes to protect him from that danger,...