Individually v. Nassan
| Decision Date | 23 July 2010 |
| Docket Number | Civil Action No. 09-383 |
| Citation | 727 F.Supp.2d 388 |
| Parties | Diane ZION individually and as Representative of the Estate of Nicholas Haniotakis. Taylor Haniotakis, Nikki Haniotakis, Benjamin Haniotakis, Plaintiffs, v. Trooper Samuel NASSAN, Sgt. Terrence Donnelly, Lt. David Heckman, Capt. Sheldon Eptein, Commissioner Frank Pawlowski, Major Terry Seilhamer in Their Individual Capacities, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Austin P. Henry, Mills & Henry, Pittsburgh, PA, Geoffrey N. Fieger, Robert M. Giroux, Fieger, Fieger, Kenney & Johnson, Southfield, MI, for Plaintiffs.
Jerry S. McDevitt, K & L Gates LLP, Pittsburgh, PA, Susan E. Malie, Office of General Counsel, Harrisburg, PA, for Trooper Samuel Nassan.
Bryan Campbell, Pittsburgh, PA, for Terrence Donnelly.
Robert A. Willig, Office of Attorney General, Pittsburgh, PA, Susan E. Malie, Office of General Counsel, Harrisburg, PA, for David Heckman, Sheldon Epstein, Frank Pawlowski, Terry Seilhamer.
Pending before this court are several motions, including several motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) and a motion for sanctions filed pursuant toFederal Rule of Civil Procedure 11. On December 29, 2009, defendant Trooper Samuel Nassan ("Nassan") filed a motion for sanctions. (Docket No. 63.) On January 26, 2010, three motions to dismiss were filed: (I) motion to dismiss amended complaint filed by Nassan (Docket No. 71), (2) motion to dismiss amended complaint filed by defendant Sergeant Terence Donnelly ("Donnelly") (Docket No. 70), and (3) motion to dismiss filed by defendants Commissioner Frank Pawlowski ("Pawlowski"), Major Terry Seilhamer ("Seilhamer"), Captain Sheldon Epstein ("Epstein"), and Lieutenant David Heckman ("Heckman") (collectively "supervisory defendants," and together with Nassan and Donnelly, "defendants") (Docket No. 73). All three pending motions to dismiss relate to the amended complaint filed by plaintiffs Diane Zion ("Zion"), Taylor Haniotakis, Nikki Haniotakis, and Benjamin Haniotakis (collectively "plaintiffs"). (Docket No. 54.)
On April 1, 2009, plaintiffs filed the initial complaint. (Docket No. 1.) On August 26, 2009, Nassan filed a motion to dismiss the initial complaint. (Docket No. 19.) That same day, defendants Heckman, Epstein, Pawlowski, and Seilhamer filed a motion to dismiss the initial complaint. (Docket No. 21.) On November 19, 2009, this court held a hearing on the two motions to dismiss. At the hearing, the court also addressed a motion to strike scandalous pleadings filed on September 1, 2009 by plaintiffs. (Docket No. 23.) On the record, the court denied the motion to strike and granted the motions to dismiss the complaint without prejudice. On December 3, 2009, plaintiffs filed the amended complaint, and the pending motion for sanctions and the motions to dismiss followed.
Plaintiffs' claims arise from the death of Nicholas Haniotakis. Zion is the appointed personal representative of the estate of Nicholas Haniotakis. Taylor Haniotakis, Nikki Haniotakis, and Benjamin Haniotakis are the children of Nicholas Haniotakis. ( Id. ¶ 3.) Zion filed the lawsuit in both her individual capacity and her representative capacity on behalf of the estate of Nicholas Haniotakis. ( Id. ¶ 2.)
Nassan was a Pennsylvania State Police patrol trooper, stationed out of Troop B in Fayette County, Pennsylvania. ( Id. ¶ 4.) Donnelly was an officer employed by the Pittsburgh Police Department. ( Id. ¶ 5.) Pawlowski was the Pennsylvania State Police Commissioner. ( Id. ¶ 6.) As commissioner, Pawlowski exercised administrative command over the Pennsylvania State Police. ( Id.) This command included fiscal authority and responsibility, as well responsibilities related to employee misconduct and discipline. ( Id.) Seilhamer was the Area Commander responsible for supervising Troop B, among other troops. ( Id. ¶ 7.) Epstein was the commanding officer of Troop B. ( Id. ¶ 8.) Heckman was the station commander and direct supervisor of Nassan. ( Id. ¶ 9.)
On the night of March 15, 2009, Nassan and Donnelly were working together, patrolling in a police vehicle. ( Id. ¶ 5.) They followed a vehicle because it had a broken headlight ( Id. ¶ 10.) This vehicle was driven by Nicholas Haniotakis, although Nassan and Donnelly did not know the identity of the driver or the driver's condition, state of mind, or intentions. ( Nassan and Donnelly were instructed by dispatch to stop their pursuit of the vehicle, but, despite the instructions, thetwo continued to follow the vehicle. ( Id. ¶ 14.) Nicholas Haniotakis stopped the vehicle, and Nassan and Donnelly exited the police vehicle with firearms drawn. ( Id. ¶ 15.) Nassan and Donnelly approached the vehicle and opened fire. ( Id.) Nicholas Haniotakis was facing away from Nassan and Donnelly when the two fired. ( Id. ¶ 19.) Bullets hit Nicholas Haniotakis in the extremities and back, which ultimately caused his death. (
Nicholas Haniotakis did not possess a weapon, and he did not pose a threat to anyone in the area. ( Police officers are taught to use a police vehicle as a barrier if necessary for protection, and are also taught to maintain distance when pursuing individuals. ( Id. ¶ 17.) Nassan and Donnelly could have used the police vehicle as a barrier, but did not do so. ( Id. ¶ 18.)
Nassan had a history of violent propensities, including physical altercations with officers while he was in the military. ( Id. ¶ 22.) Heckman, Pawlowski, Epstein, and Seilhamer were aware of this history. ( Id. ¶ 42.) In one such incident, Nassan caused facial fractures and head injuries to a military officer. ( Id.) Nassan left the military without an honorable discharge. ( Id. ¶ 23.) Nassan became employed by the Pennsylvania State Police after leaving the military. ( Id.) The Pennsylvania State Police had Trooper Frank Murphy, who shared a close personal relationship with Nassan, perform Nassan's background check. ( Id.) Murphy had a history of a violence and perjury, and intentionally covered up several aspects of Nassan's history. (
During his employment as a state trooper, Nassan was involved in confrontations with both state and local law enforcement officers, including Barry Gaston of the Pennsylvania State Police and Corporal Tony Guy. ( Nassan was not disciplined for these altercations, and his supervisors, including Pawlowski, Seilhamer, Epstein, and Heckman, were aware of the incidents. ( Nassan also had confrontations with members of public. ( Id. ¶ 32.)
In February 2008, a civil jury found Nassan liable for violating the civil rights of Michael Ellerbe ("Ellerbe"), a twelve-year-old boy, and returned a $28,000,000 verdict against Nassan and his co-defendant. ( The verdict was based upon the fatal shooting of Ellerbe by Nassan. ( Id.) The boy was unarmed and running away when he was shot. ( Id. ¶ 36.) Pawlowski interacted with the office of the governor of Pennsylvania with respect to the jury verdict and facilitated a settlement of the case. ( Heckman was the crime unit commander responsible for investigating the shooting on behalf of the Pennsylvania State Police. (
Pawlowski, Seilhamer, Epstein, and Heckman knew who Nassan was before the jury returned its verdict in the case related to Ellerbe. ( Id. ¶ 54.) After the verdict, Pawlowski, Seilhamer, Epstein, and Heckman learned through "lines of communication standard in the state police" that the jury determined Nassan lied about the circumstances of the shooting. ( Id ) Around the time of the verdict, Pawlowski, Seilhamer, Epstein and Heckman each learned the significant points about Nassan's past. ( Id. ¶ 55.) For example, plaintiffs allege Pawlowski, Seilhamer, Epstein, and Heckman learned that Nassan was asked to leave the military because Nassan failed to meet certain standards, and they learned that the military rejected Nassan's request to remain in the service of the military despite these failures. ( Id )
In December 2008, Heckman forced a subordinate, Corporal Ken Munshower ("Munshower"), to alter the employment records of Nassan, purging evidence ofviolent tendencies. ( Id. ¶ 39.) With respect to an annual performance evaluation for Nassan, Heckman ordered Munshower to change a statement from "needed improvement" to "satisfactory." ( Id. ¶ 40.)
Pawlowski, Seilhamer, Epstein, and Heckman received specific information and reports with respect to Nassan's propensity for violence, misconduct while on duty, record of physical confrontations with other state and local police officers and supervisors, and fatal shooting of Ellerbe. ( Although Heckman, Pawlowski, Epstein, and Seilhamer were aware of violent episodes in Nassan's past, they did not order training to address these problems. ( Id. ¶ 42.) Heckman, Pawlowski, Epstein, and Seilhamer decided to continue Nassan's employment, despite their being aware of Nassan's history. ( Id. ¶ 43.)
Plaintiffs assert three counts in the amended complaint. Count one asserts a claim pursuant to 42 U.S.C. § 1983, alleging that Nassan or Donnelly used excessive deadly force on Nicholas Haniotakis, in violation of his Fourth Amendment rights. ( Id. ¶¶ 45-51.) Count two asserts a claim pursuant to § 1983, alleging that Pawlowski, Seilhamer, Epstein, and Heckman violated Nicholas Haniotakis's civil rights by acting with deliberate indifference to, or tacit authorization of, Nassan's illegal conduct. ( Id. ¶¶ 52-59.) Count three asserts a state law claim of assault and battery against Nassan. ( Id. ¶¶ 60-62.) The court will first discuss the motions to dismiss and then will consider the motion for sanctions.
The motions to dismiss filed by Nassan and Donnelly...
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