Nykiel v. Bor. of Sharpsburg Sharpsburg Police Dep't

• Decision Date: 09 March 2011
• Docket Number: Civil Action No. 08–0813.
• Citation: 778 F.Supp.2d 573
• Parties: Cheryl NYKIEL, individually and and as Administratrix of the Estate of Gregory T. Nykiel, Deceased, Plaintiff,v.BOROUGH OF SHARPSBURG Sharpsburg Police Department, Leo Rudzki, Thomas Duffy, Borough of Etna, Etna Police Department and Chad Mitchell, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

778 F.Supp.2d 573

Cheryl NYKIEL, individually and and as Administratrix of the Estate of Gregory T. Nykiel, Deceased, Plaintiff,

v.BOROUGH OF SHARPSBURG Sharpsburg Police Department, Leo Rudzki, Thomas Duffy, Borough of Etna, Etna Police Department and Chad Mitchell, Defendants.

Civil Action No. 08–0813.

United States District Court, W.D. Pennsylvania.

March 9, 2011.

Thomas J. McClain, Pittsburgh, PA, for Plaintiff.Paul D. Krepps, Marshall, Dennehey, Warner, Coleman & Goggin, Robert J. Grimm, Swartz Campbell, Pittsburgh, PA, for Defendants.

MEMORANDUM

GARY L. LANCASTER, Chief Judge.

This is an action in civil rights. Plaintiff, Cheryl Nykiel, individually and as Administratrix of the estate of Gregory T. Nykiel (“Nykiel”), alleges that defendants, Borough of Sharpsburg, Borough of Etna, and police officers, Officer Thomas Duffy, Officer Chad Mitchell, and Chief Leo Rudzki, violated Nykiel's constitutional rights.¹ Plaintiff has filed this suit under the Fourth and Fourteenth Amendments to the United States Constitution pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 (“ Section 1983”). Plaintiff further submits claims under Pennsylvania law for battery, wrongful death, survival, and indemnification. Plaintiff seeks compensatory and punitive damages together with court costs, attorneys' fees, interest and all other relief permitted by the court.

Defendants have jointly moved for partial summary judgment under Fed.R.Civ.P. 56(c) on Counts I through VI of the complaint for excessive force, failure to obtain medical care for Nykiel, the municipalities' failure to train Officer Duffy, Officer Mitchell, and Chief Rudzki, and all state law claims against defendants. [Doc. No. 155]. Defendants contend that they did not deprive Nykiel of his federal constitutional rights or, in the alternative, that they have qualified immunity from liability on plaintiff's federal civil rights claims. For the purpose of this motion, parties agreed to except from those counts any judgment on allegations that defendants Officer Duffy, Officer Mitchell, and Chief Rudzki personally caused the death of Nykiel by asphyxiation through a choke-hold.

For the reasons that follow, the motion will be denied relating to the issues of excessive force and punitive damages against Officer Duffy, Officer Mitchell, and Chief Rudzki. Summary judgment will be granted for all other parties and claims in this action.

I. Background

Unless otherwise indicated, for purposes of deciding the pending motion only, the following facts are undisputed. We discuss additional facts throughout the memorandum, where applicable.

A. Procedural Background

Plaintiff filed this action on June 12, 2008. Stipulations and prior orders of the court have narrowed plaintiff's claims to the following: (1) a section 1983 claim against three defendant police officers, Officer Duffy, Officer Mitchell, and Chief Rudzki ², contending that they violated Nykiel's Fourth and Fourteenth Amendment rights; (2) a section 1983 claim against two remaining defendant boroughs, the Borough of Sharpsburg and the Borough of Etna, alleging that their failure to adequately train their police officers violated the Fourth ³ and Fourteenth ⁴ Amendment rights of Nykiel; and (3) Pennsylvania state law claims against all five remaining defendants (Rudzki, Duffy, Mitchell, Borough of Sharpsburg, and Borough of Etna) for battery (Count III), wrongful death (Count IV), survival (Count V) and indemnification (Count VI).

B. Factual Background

During the early morning hours of November 14, 2006, Officer Duffy was on patrol and received a call about a burglary at the Royal Biscuit Company in Sharpsburg, Pennsylvania. Officers Duffy, Mitchell, and others responded to the call and investigated the scene. Afterwards, the officers pursued Nykiel across a number of boroughs and jurisdictions.

Once the officers were able to get Nykiel to stop his vehicle, they surrounded him and ordered him to exit the vehicle. Nykiel refused. Instead, he sat in the vehicle with his hands on the steering wheel. Eventually, the officers extracted Nykiel from his vehicle through the window, handcuffed, shackled, and arrested him. In extracting Nykiel, his wrists and hands were cut and bleeding from the glass. Their search of Nykiel revealed a butterfly knife and approximately $8000 in cash. The officers retrieved a crack pipe, a police scanner, and contraband from Nykiel's vehicle.

According to their deposition testimony, none of the officers noticed anything unusual about Nykiel's behavior during the arrest, or that he was suffering from any serious medical condition. The only injury they noticed was that Nykiel was bleeding from his wrists and hands.

After they arrested him, the officers placed Nykiel in the rear of Officer Duffy's patrol vehicle during which time one of the officers heard Nykiel mumble something, but when he inquired, Nykiel responded, Nevermind. While Nykiel was seated in Officer Duffy's patrol car, Officer Fusco shined his flashlight at Nykiel and observed a discolored froth under Nykiel's nostrils. Officer Fusco thought this froth was odd, but never mentioned it or pointed it out to Officer Duffy. Officer Duffy did not notice the froth at that time.

Officers Fusco and Mitchell drove behind Officer Duffy back to the Sharpsburg Police Station. During that time, Nykiel asked Officer Duffy questions regarding the charges that would be brought against him and made other comments, like thanking Officer Duffy for not releasing the dogs on him. Nykiel's speech at this time was slurred and muffled.

While the Officers were en route, Officer Duffy requested an EMS unit to come to the Sharpsburg Police Station to evaluate Nykiel's physical injuries to make sure that he was okay. Based upon Officer Duffy's description of Nykiel's injuries, the radio dispatcher labeled the call E3, the lowest level EMS request for non-life threatening injuries. Officer Duffy also called Leo Rudzki, the Chief of Police for the Sharpsburg Police Department, to inform him that he had Nykiel in custody and about the circumstances surrounding the chase and arrest.

When Officer Duffy arrived at the police station, Officers Fusco and Mitchell were already there. Nykiel exited the patrol vehicle and walked into the police station without any assistance. According to the Officers, Nykiel was behaving in a normal manner at this time. He was responsive and cooperative when the officers escorted him to the station's holding room. Nykiel complied with the Officers' instructions without any difficulty or assistance.

Once in the holding room, Officer Fusco questioned Nykiel. Nykiel was responsive and stated his name when Officer Fusco asked him to state it. Officer Fusco then asked Nykiel if he had taken any drugs, specifically asking him if he took crack that evening, and Nykiel nodded affirmatively and mumbled what sounded like yes. [Doc. No. 160, Exhibit F.] Officer Fusco then observed a white pasty substance around Nykiel's mouth and lower facial area, almost like toothpaste. This substance appeared different than the froth Officer Fusco observed under Nykiel's nostrils at the scene of arrest. Officer Mitchell also observed a white, crusty substance on Nykiel's lips.

Officer Duffy had previously left the holding area to get Officer Fusco gloves. Even after Officer Duffy left the holding area, Officer Duffy was able to hear Officer Fusco ask Nykiel if he had something in his mouth. Soon thereafter, Nykiel spit a small white piece of paper out of his mouth. He then said that he was having trouble breathing, and he began to shake in what seemed, to Officer Fusco, to be a seizure or perhaps a reaction to ingesting cocaine. In order to give Nykiel freedom of movement, Officer Fusco removed Nykiel's handcuffs. He called Officer Duffy for assistance, and told the medics to call additional medics to see if they could get to the station more quickly to examine Nykiel.

Although Officer Fusco later informed Officer Duffy that Nykiel had spit up a small white piece of paper, Officer Fusco did not tell Officer Duffy at that time his suspicion that Nykiel may be having a seizure due to a cocaine overdose. However, Officer Fusco testified that, based upon his training and experience, he believed Nykiel may have been overdosing on a drug of some type.

When Officer Duffy reentered the holding room, Nykiel was lying with his back on the floor, swinging both of his arms aggressively. At that time, Officer Duffy was not sure if Nykiel's actions were intentional, or if they were the result of a seizure. Shortly thereafter, the medics, EMTs Jamey Lavelle and David Sanford, entered the holding area. Nykiel was lying face up on the floor and moving around. Within seconds, Nykiel became unresponsive. The medics then began treatment on Nykiel. During this time, Chief Rudzki arrived at the station. He never entered the holding area, and therefore, never had any interaction with Nykiel. Upon arrival, he observed the events from the hallway for approximately three to five minutes and then went back to his office. Officer Fusco then told him he believed Nykiel was overdosing on cocaine.

At one point during the treatment, EMT Lavelle performed a sternal rub on Nykiel at which point EMT Sanford noticed white foam coming from Nykiel's mouth. As soon as EMT Lavelle rubbed Nykiel's sternum, Nykiel awoke. He was violent and combative. He was swinging his arms around and kicking his legs, growling and screaming. According to the medics, Nykiel was conscious, but was not responding to any commands; they believed that his combative behavior appeared deliberate and voluntary. Nykiel then began slamming the back of his head on the floor. Again, EMTs Lavelle and Sanford believed that Nykiel was doing this deliberately.

Officer Duffy, Officer Fusco, and Officer Mitchell attempted to restrain Nykiel by grabbing his arms and legs and holding him down. Like the...