Pethtel v. West Virginia State Police

• Decision Date: 29 July 2008
• Docket Number: Civil Action No. 5:06CV87.
• Citation: 568 F.Supp.2d 658
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Carol PETHTEL, individually and in her capacity as Administratrix of the Estate of Thomas Samuel Pethtel, Jr., deceased, and as guardian ad litem for Tara Brothers, Tabitha Pethtel and Thomas S. Pethtel, III, Plaintiff, v. WEST VIRGINIA STATE POLICE, Colonel David L. Lemmon, Superintendent of the West Virginia State Police, Sergeant Gerald L. Menendez, Sergeant Charles F. Trader, First Sergeant David B. Malcomb, First Sergeant L. Scot Goodnight, Corporal R.L. Mefford and Trooper J.A. Simmons, individually and in their capacity as members of the Special Response Team-Alpha Team of the West Virginia State Police, Captain T. Phillips, State Police Commanding Officer in Ohio County, Defendants.

568 F.Supp.2d 658

Carol PETHTEL, individually and in her capacity as Administratrix of the Estate of Thomas Samuel Pethtel, Jr., deceased, and as guardian ad litem for Tara Brothers, Tabitha Pethtel and Thomas S. Pethtel, III, Plaintiff, v. WEST VIRGINIA STATE POLICE, Colonel David L. Lemmon, Superintendent of the West Virginia State Police, Sergeant Gerald L. Menendez, Sergeant Charles F. Trader, First Sergeant David B. Malcomb, First Sergeant L. Scot Goodnight, Corporal R.L. Mefford and Trooper J.A. Simmons, individually and in their capacity as members of the Special Response Team-Alpha Team of the West Virginia State Police, Captain T. Phillips, State Police Commanding Officer in Ohio County, Defendants.

Civil Action No. 5:06CV87.

United States District Court, N.D. West Virginia.

July 29, 2008.

COPYRIGHT MATERIAL OMITTED

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Peter M. Suwak, Washington, PA, for Plaintiff.

Michael D. Mullins, Steptoe & Johnson, PLLC, Charleston, WV, Monte L. Williams, Steptoe & Johnson, PLLC, Morgantown, WV, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DISMISSING WITH PREJUDICE PLAINTIFF'S COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTIONS IN LIMINE

FREDERICK P. STAMP, JR., District Judge.

I. Procedural History

The plaintiff in this action filed suit for claims arising out of the death of Thomas Samuel Pethtel, Jr. ("Pethtel"), who was shot by law enforcement officers after he had escaped from federal custody. Carol Pethtel has brought this action on her own behalf; in her capacity as administratrix of Pethtel's estate; and as guardian ad litem for Pethtel's three children, Tara Brothers, Tabitha Pethtel, and Thomas S. Pethtel, Jr. The plaintiff alleges that the West Virginia State Police, the law enforcement officers who attempted to apprehend Pethtel after his escape, and the supervisors of those law enforcement officers violated Pethtel's constitutional rights by using excessive force to apprehend Pethtel, in violation of 42 U.S.C. § 1983, by executing an arrest plan that resulted in Pethtel's fatal shooting. The plaintiff also alleges state law claims for wrongful death, "survivorship action" and "the Tort of Excessive Force resulting in death."

The defendants filed a motion for summary judgment, in which they assert that the § 1983 claim does not survive Pethtel's death; that the plaintiff has failed to make the requisite showing of excessive force for her § 1983 claim; and that the defendants are entitled to qualified immunity. The plaintiff filed a response, to which the defendants have replied. This motion has been fully briefed and is now ripe for disposition. For the reasons set forth below, this Court finds that the plaintiffs § 1983 claim survives Pethtel's death, but that the defendants' motion for summary judgment must be granted because the plaintiff has failed to demonstrate a genuine issue of material fact that the defendants used excessive force, and because even if the defendants' conduct did constitute excessive force, the defendants are entitled to qualified immunity. Accordingly, the plaintiffs complaint must be dismissed with prejudice.¹

II. Facts

Thomas Pethtel ("Pethtel") was a criminal defendant who had entered a plea agreement and was awaiting sentencing. His sentencing hearing was scheduled for July 12, 2004, pending which he was released under house arrest at his sister's residence, subject to electronic monitoring. At some time prior to July 12, 2004, during his period of house arrest, Pethtel removed his electronic monitoring device, and fled from federal custody. After Pethtel failed to appear for sentencing, federal warrants were issued for his arrest.

Law enforcement officials learned of Pethtel's whereabouts on July 13, 2004, when they received a report from Patricia Grinage ("Grinage"). According to Grinage, Pethtel and his girlfriend, Randi Scott ("Scott"), had been residing for several days at the home of Pethtel's friend George Schlosser ("Schlosser"), where Grinage had also been living for a time.

Grinage informed the officers that Pethtel had a gun in the house; that he had been consuming cocaine; that he had threatened to kill her and her co-residents if they called the police; that he had gone for several days without sleep and was constantly watching the windows waiting for the police to find him; and that he was holding the occupants of the house against their will—allowing only one person to leave the house at any given time and threatening to kill the others if the person who left contacted the police or did not return. Grinage also told the officers that Pethtel had declared that he would not allow himself to be taken back to prison and that he would "go out in blaze of glory" by killing everybody in the house, including any police who came to arrest him. Further, Grinage informed the police that Pethtel had instructed her to purchase hollow point bullets for his gun.

Based upon the information provided by Grinage, the West Virginia State Police determined that any efforts to apprehend Pethtel involved a high degree of risk and imminent danger to the hostages and to law enforcement personnel. Accordingly, they summoned a Special Response Team ("SRT") to execute the apprehension. Team leader First Sergeant David B. Malcomb ("Malcomb") consulted various law enforcement sources, collecting additional information about Pethtel, which he then disseminated to the other SRT members. From his research, Malcomb learned that Pethtel was a large man who had previously been in prison and who was prone to violently resisting arrest. Thus, as the SRT members prepared to apprehend Pethtel at Schlosser's home, the composite of information available to them from Grinage's report and Malcomb's research indicated that they would be entering into a hostage situation to apprehend an armed and violent felon, who had escaped federal custody to avoid further incarceration, and who had threatened to kill his hostages and any law enforcement officers attempting to return him to custody.

After assessing the situation, the SRT determined that a surprise breach of the Schlosser residence would be the most effective approach and would pose the least danger to the safety of the hostages and to the officers' own safety. During the late night hours of July 13, or the early morning hours of July 14, 2004, the SRT breached the back door of Schlosser's residence with a ram, then deployed "flash-bang" distraction devices and entered the house. The first person they encountered was Schlosser, who offered no resistance and was quickly secured without incident. In response to questions by SRT member Sergeant Gerald L. Menendez ("Menendez"), Schlosser stated that two other persons (Pethtel and Scott) were on the premises and that at least one of those persons had a gun. Menendez announced this information to the other SRT members.

Given the generally chaotic circumstances involved in the attempted apprehension of Pethtel and the rapidity with which the subsequent events unfolded, the precise chronology of what occurred next is uncertain. However, the parties do not dispute that the following events occurred after the SRT members entered Schlosser's home and secured Schlosser.

Within a few seconds, SRT members located Pethtel, who had retreated with Scott to a bedroom. Pethtel grabbed Scott, held an object to her neck, and began repeatedly yelling threats that he would kill her if the police did not retreat. Although Pethtel apparently quietly told Scott that he would not harm her—an assurance which law enforcement officers did not hear—Scott nevertheless evidently feared for her life and loudly screamed for the officers' help.

Pethtel took Scott into a small bathroom, located in the interior of the bedroom. The door to the bathroom repeatedly opened and closed. Each time the door opened, Pethtel used Scott as a human shield, bobbing from side-to-side behind her, and continuing to hold to her neck what appeared to some of the SRT members to be a knife or some other weapon, but what later proved to be a piece of plasterboard. Throughout, Pethtel never stopped threatening to kill Scott, who never stopped screaming for help or begging Pethtel not to kill her.

At some point, in an effort to escape, Pethtel attempted to kick a hole in the wall through the bedroom into an adjoining laundry area. From the other side, SRT member Menendez observed Pethtel appear and attempt to enter the laundry area through the hole and to drag Scott with him. Menendez fired a shot that wounded but did not kill Pethtel. At that point, Pethtel either withdrew from the escape hole or was knocked backward by the shot into the bathroom. SRT member Sergeant Charles F. Trader, who was positioned either in the hallway outside the bedroom, or in the bedroom itself, then fired the fatal shot.

Under this set of facts, the parties dispute whether the plaintiffs § 1983 claim survives Pethtel's death. They also dispute whether the force used by law enforcement personnel was excessive and whether the defendants are entitled to qualified immunity.

III. Applicable Law

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718-19 (4th Cir. 1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992)(ci...