Mariani v. City of Pittsburgh

• Decision Date: 03 January 1986
• Docket Number: Civ. A. No. 83-2991.
• Citation: 624 F. Supp. 506
• Parties: William MARIANI, Plaintiff, v. CITY OF PITTSBURGH, a municipal corporation, Officer Preik and Officer Pupinski, as individuals, and in their official capacity as members of the Police Force of the City of Pittsburgh, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

624 F. Supp. 506

William MARIANI, Plaintiff, v. CITY OF PITTSBURGH, a municipal corporation, Officer Preik and Officer Pupinski, as individuals, and in their official capacity as members of the Police Force of the City of Pittsburgh, Defendants.

Civ. A. No. 83-2991.

United States District Court, W.D. Pennsylvania.

January 3, 1986.

Raymond Radakovich, Pittsburgh, Pa., for plaintiff.

Zan I. Hodzic, Asst. City Sol., D.R. Pellegrini, City Sol., Bryan Campbell, Pittsburgh, Pa., for defendants.

OPINION

COHILL, Chief Judge.

Presently before us is a Motion for Summary Judgment filed on behalf of Defendant the City of Pittsburgh ("City"). The Complaint charges both the City and two individual police officers with violating 42 U.S.C. § 1983 (1982) by depriving Plaintiff of his fourteenth amendment rights.

Background

The above captioned action arises out of a series of events beginning on the evening of April 9, 1983 and ending early the following morning. Shortly after a rock concert had ended at a downtown theater, Cynthia Dietrich, a police officer who was directing heavy pedestrian traffic at a major intersection, observed the Plaintiff. She reported that an individual fitting Plaintiff's description, and driving a black Camaro, had disregarded her signals, accelerated into the intersection toward her, and then swerved away just barely missing her. A number of pedestrians were forced to run out of the intersection to avoid being hit. Dep., p. 10.

Dietrich gave a description of the car, including its license plate and a description of the driver to an officer at police headquarters. Her descriptions, along with her version of the incident, to the effect that the driver had almost run over several people, were broadcast over the police radio. Id., at 13.

At approximately one o'clock in the morning, Officers Preik and Papinski, the individual Defendants in this action, spotted the vehicle described. It was parked and unoccupied. Pupinski Dep., p. 5. The officers reported that they had found the vehicle and requested assistance. A short time later, the officers observed the Plaintiff approaching the vehicle. Plaintiff matched the description of the individual involved in the earlier incident. Id., at 9.

According to the officers, they initially attempted to stop the Plaintiff to obtain identification. However, when Plaintiff spotted the officers, he entered his vehicle and attempted to drive away. Preik Dep., p. 9. Aided by two other officers who had responded to their call, Officers Preik and Pupinski blocked Plaintiff's vehicle with a patrol car and a van. Id., at 13.

Approaching Plaintiff's vehicle from the rear, Officers Preik and Pupinski requested that Plaintiff step out of his vehicle. Id., at 11. When Plaintiff did not voluntarily exit his vehicle, the officers forcibly removed him. According to the officers, Plaintiff resisted arrest, punching and kicking at them from the moment they removed him from his vehicle until he was handcuffed and placed in the van. Pupinski Dep., p. 8.

After the struggle, the officers noticed some blood on Plaintiff's hair. Believing that Plaintiff may have injured his head during his resistance, the officers stopped at a hospital before taking Plaintiff to the police station. Preik Dep., p. 30. Both officers deny using a night stick, punching or kicking Plaintiff to subdue him. Id., at 17-20. Pupinski Dep., p. 12. According to the officers, Plaintiff's head wound did not require sutures and Plaintiff had suffered no other injury.

During his arrest, Officer Pupinski smelled alcohol on Plaintiff's breath. Later, at the police station, he observed Plaintiff walking with a staggered gait. Pupinski Dep., p. 8. Consequently, a breath analysis was administered, the results of which indicated that Plaintiff was legally intoxicated. Plaintiff subsequently pled guilty to a charge of underage drinking and a drunk driving charge against him was dismissed.

William Mariani, Plaintiff, states a different version of the circumstances surrounding his arrest. He claims that sometime around two o'clock in the morning, after his father's bar had closed, he went outside to retrieve his wallet from his car. Mariani Dep., p. 48. He conversed briefly with some men who had noticed a number of police cars on the street, then he proceeded to enter his car. Id., at 49-50. Immediately upon his entering the car, several police cars with their lights flashing blocked in his car and demanded that he get out of it. Id. Three or four policemen, night sticks drawn, approached his car, opened the door, dragged him out and began to beat him and shout obscenities at him. They allegedly accused him of being a cop killer. Plaintiff claims that he was thrown up against his car several times and then handcuffed. Id., at 52.

Plaintiff also disagrees with the officers' story in several other respects. He disputes the fact that his head injury did not require stitches, stating instead that the officers talked the nurse out of giving him one or two stitches. Id., at 11. At the police station, Plaintiff claims that the officers threatened him with revenge for attempting to kill a police officer. Id., at 55. Plaintiff denies that he attempted to run down the traffic officer. Rather, he claims that he simply disobeyed her order to stop because he was sick of being in traffic. Id., at 43.

Officers Preik and Pupinski deny Plaintiff's allegations that they maliciously assaulted him and used unnecessary force in making his arrest. On the contrary, the officers maintain that Plaintiff's behavior during the arrest constitutes intentional assault and battery against them. They have filed a counterclaim to that effect.

Summary Judgment

The City files this Motion for Summary Judgment on the grounds that, given either version of the facts, Plaintiff has failed to establish a basis for municipal liability under § 1983. When considering a motion for summary judgment, the Court, viewing the facts in the light most favorable to the nonmoving party, must determine if there are any genuine issues of material facts. Fed.R.Civ.P. 56. Myer v. Riegel Products Corp., 720 F.2d 303 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Betz Laboratories Inc. v. Hines, 647 F.2d 402 (3d Cir.1981). The moving party has the burden of proving that no genuine issue exists. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1969); Butz v. Hertz Corp., 554 F.Supp. 1178, 1181 (W.D. Pa.1983). Any doubts must be resolved in favor of the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985) (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981)).

Municipal Liability

A municipality can not be liable under § 1983 solely on the basis of respondeat superior. Thus, no liability arises for failure to control the conduct of an officer. However, a municipality can be held liable under § 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978).

In order to establish municipal liability under § 1983, a plaintiff must: 1) identify the challenged policy or custom, 2) attribute it to the city, and 3) show a causal connection between the execution of that policy and the injury suffered. Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir.1985) (quoting Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). See City of Oklahoma City v. Tuttle, ___ U.S. ___, 105 S.Ct. 2427, 2439, 85 L.Ed.2d 791, 807 (Brennan, J., concurring); Gilmere v. City of Atlanta, 774 F.2d 1495, 1512 (11th Cir.1985) (en banc) (Johnson, J.); Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985).

A policy or custom is a "course of action consciously chosen from among various alternatives." Tuttle, 105 S.Ct. at 2436, (Rehnquist, J., Plurality). Technically, the term "policy" denotes something which has been officially adopted, while the term "custom" denotes a practice which is so widespread, well settled and permanent, that it rises to the level of law. Gilmere, 774 F.2d at 1504, 1512 (citing Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), reh'g en banc denied, 739 F.2d 993 (1984).

A policy or custom can be inferred from acts or omissions if they constitute tacit approval or deliberate indifference to unconstitutional conduct. See, e.g., Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985) (quoting Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980)); Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983); Hays v. Jefferson Co., 668 F.2d 869, 873-74, reh'g denied, 673 F.2d 152 (1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1983); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981). Whether municipal action or inaction amounts to authorization, approval or encouragement is generally a question of fact. Estate of Bailey, 768 F.2d at 506.

Once the existence of a policy has been established and attributed to the municipality, the Plaintiff must show a plausible nexus between the execution of that policy and the constitutional rights violated. Estate of Bailey, 768 F.2d at 507. In other words, to sustain his burden, Plaintiff must develop facts which demonstrate an "affirmative link" between the misconduct of the individual officer and some policy, express or implied, which has been adopted or authorized by the City. Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976). See Tuttle, 105 S.Ct. at 2436. The official policy must be the "moving force" behind the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. at 2037; Black v....