Neuburger v. Thompson

• Decision Date: 23 February 2004
• Docket Number: Civil Action No. 03-237 Erie.
• Citation: 305 F.Supp.2d 521
• Parties: Edward C. NEUBURGER, Individually and as Executor of the Estate of Kathleen C. Neuburger, Plaintiff, v. Robert THOMPSON, et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

305 F.Supp.2d 521

Edward C. NEUBURGER, Individually and as Executor of the Estate of Kathleen C. Neuburger, Plaintiff, v. Robert THOMPSON, et al., Defendants.

Civil Action No. 03-237 Erie.

United States District Court, W.D. Pennsylvania.

February 23, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffrey C.Dohrmann, Esq., Rieders, Travis, Mussina, Humphrey & Harris, Williamsport, PA, for Plaintiff.

Craig E. Maravich, Esq., Susan J. Forney, Esq., Office of the Attorney General, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

McLAUGHLIN, District Judge.

This civil action is brought under 42 U.S.C. § 1983 and arises out of the fatal shooting of Decedent Kathleen C. Neuburger which occurred at the hands of Pennsylvania State Trooper Robert Thompson on August 18, 2001. Plaintiff Edward C. Neuburger, acting both individually and as executor of Ms. Neuburger's estate, alleges, among other things, that Trooper Thompson and various other members of the State Police violated Ms. Neuburger's rights under the Fourth Amendment to the United States Constitution.

Presently pending before the Court in this matter is a motion by Defendants to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because we conclude that the complaint fails to state a viable cause of action under 42 U.S.C. § 1983, we will dismiss Plaintiff's federal claims. Further, we will decline to exercise supplemental jurisdiction over Plaintiff's state law claims.

I. BACKGROUND

According to Plaintiff's complaint, at about 10:15 p.m. on the night of August 18, 2001, Ms. Neuburger was sitting at the end of a concrete jetty, approximately thirty (30) feet from the shoreline, in the Walnut Creek Access Area of Lake Erie. (Complaint at ¶¶ 13-14.) Witnesses contacted 911 to report that Ms. Neuburger was distraught and had fired one shot from a handgun into the Lake. (Id. at ¶¶ 15-16.) Pennsylvania State Troopers Robert Thompson, William Sibbald, James Barnes, and Mark Temel were dispatched to the scene. (Id. at ¶ 17.)

When the Troopers arrived on the scene at about 10:37 p.m., Ms. Neuburger was facing out across the water at the end of the jetty with her feet in the water. (Id. at ¶¶ 17-18.) Trooper Barnes was designated to speak with Ms. Neuburger while Defendant Thompson, armed with a shotgun, and Defendant Sibbald, armed with a semi-automatic handgun, provided cover. (Id. at ¶ 19.) Defendant Temel provided light from two flashlights and provided additional cover as well. (Id.)

The complaint alleges that the four Troopers began approaching Ms. Neuburger in the following manner. Defendant Thompson approached from left of the jetty with his shotgun pointed toward Ms. Neuburger. (Complaint at ¶ 20.) Trooper Temel was positioned behind Trooper Thompson with two flashlights in his left hand pointed toward Ms. Neuburger and a drawn semi-automatic handgun (presumably in the other hand). (Id.) Trooper Barnes approached Ms. Neuburger from directly behind the jetty. (Id.) Trooper Sibbald approached from the right of the jetty with a semi-automatic handgun drawn. (Id.)

As the Troopers made their approach, Ms. Neuburger appeared highly emotional and was crying unintelligibly. (Id. at ¶ 21.) Trooper Barnes spoke to Ms. Neuburger saying, among other things, for her to put the handgun down. (Id. at ¶ 22.) Ms. Neuburger told the Troopers "to get away from her and not make her do this." (Id. at ¶ 23.) Nevertheless, the Troopers continued to approach Ms. Neuburger in the manner indicated, with Trooper Barnes again instructing Ms. Neuburger to put her gun down. (Id. at ¶ 24.) Ms. Neuburger remained highly emotional and was crying unintelligibly. (Id. at ¶ 25.)

As the Troopers approached, Ms. Neuburger, still facing out across the water and with her feet in the water, raised her arm holding the handgun and pointed it out across the water. (Id. at ¶ 26.) Then, with the Troopers still approaching, Ms. Neuburger began to pivot toward Trooper Barnes with her arm holding the handgun still extended and stated, "You're making me do this." (Id. at ¶ 27.) Ms. Neuburger began pointing her handgun toward Trooper Barnes. (Id. at ¶ 28.) At that point, Trooper Thompson fired his shotgun at Ms. Neuburger, striking her in the head and neck, knocking her into the water, and causing her death. (Id. at ¶ 29.)

Plaintiff asserts that, in light of the geography of the location and Ms. Neuburger's position on the jetty, Ms. Neuburger was not — prior to the Troopers' approach and Ms. Neuburger's standing and turning — posing an imminent threat of death or serious bodily injury to the Troopers or anyone else in the area. (Id. at ¶ 30.) Plaintiff further claims that the Troopers had time to attempt to "wait out" Ms. Neuburger, employ a trained negotiator, or utilize other strategies or tactics in an attempt to apprehend Ms. Neuburger without the use of deadly force. (Id. at ¶ 32.) It is alleged that the Troopers' failure or refusal to take these alternative measures and their decision to instead approach Ms. Neuburger in the manner described unnecessarily and unreasonably created circumstances under which deadly force was utilized. (Id. at ¶¶ 31, 33-34.)

Plaintiff has asserted numerous causes of action premised upon the foregoing averments. Under Counts I and II of his complaint, Plaintiff asserts that Troopers Thompson, Sibbald, Barnes, and Temel (the "on-scene officers") violated, respectively, Ms. Neuburger's federal and state constitutional rights to be free from an unreasonable seizure by affirmatively engaging in — and/or by failing or refusing to stop — the use of unreasonable and/or excessive force. In Counts III and IV, Plaintiff asserts that Erby Conley (then Commander of Troop E, Pennsylvania State Police) and Michael Hample (Captain of Trooper E) violated, respectively, Ms. Neuburger's federal and state constitutional rights to be free from unreasonable seizure by failing or refusing to provide the on-scene officers with appropriate supervision and training regarding the seizing of individuals under the kind of circumstances involved in this case. Counts V through VII assert additional state law claims on behalf of both Ms. Neuburger and the Plaintiff.

Defendants ask this Court to dismiss the federal claims on the ground that Plaintiff has not adequately pleaded a violation of Ms. Neuburger's federal constitutional rights for purposes of § 1983. Alternatively, Defendants assert that they are entitled to qualified immunity as to these claims. Defendants also seek a dismissal of the state law claims for lack of supplemental jurisdiction. The motion has been fully briefed and argued and is now ripe for adjudication.

II. STANDARD OF REVIEW

In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), we accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. M.A. ex rel. E.S. v. State-Operated School Dist. of City of Newark, 344 F.3d 335, 340 (3d Cir.2003). We may dismiss a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Doe v. Delie, 257 F.3d 309, 313 (3d Cir.2001) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

III. DISCUSSION

A.

Because our ruling on Plaintiff's § 1983 claims is dispositive, we address those issues initially. We first consider Plaintiffs' § 1983 claim against the on-scene officers. We then consider the § 1983 claim against Defendants Conley and Hample, whom Plaintiff seeks to hold liable in their supervisory capacities.

1. Defendants Thompson, Sibbald, Barnes and Temel

a.) Can Plaintiff Establish a Violation of Ms. Neuburger's Constitutional Rights?

In order to recover under 42 U.S.C. § 1983¹, a plaintiff must show that the defendant, while acting under color of state law, subjected the plaintiff to a deprivation of a right, privilege, or immunity secured by the constitution or laws of the United States. Renda v. King, 347 F.3d 550, 557 (3d Cir.2003). Police officers who violate an individual's federal constitutional or statutory rights while acting under color of state law are subject to liability under § 1983. Curley v. Klem, 298 F.3d 271, 277 (3d Cir.2002).

Plaintiff has asserted that the on-scene officers violated Ms. Neuburger's Fourth Amendment Right to be free from "unreasonable seizures." In so pleading, however, Plaintiff likens his Fourth Amendment claim to a theory of "state created danger," a doctrine applicable under Fourteenth Amendment substantive due process principles. As a beginning point, therefore, we must determine which of Ms. Neuburger's constitutional rights are implicated under the facts of this case and then determine whether Plaintiff has adequately alleged a constitutional violation.

The Supreme Court has made clear that, where the alleged use of excessive force occurs in the context of an arrest, investigatory stop, or other "seizure" of a free citizen,² the claim must be analyzed under the "objective reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Pursuant to this standard, we inquire whether the officers' actions in utilizing force were objectively reasonable in light of the facts and circumstances confronting them, regardless of their underlying intent or motivation. Curley, 298 F.3d at 279 (citing Graham, 490 U.S. at 397, 109 S.Ct. 1865).

Determining whether an officer's use of deadly force was "objectively reasonable" necessitates a "careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This inquiry "is not capable of precise definition or mechanical application," id. (quoting Bell v....