Troublefield v. City of Harrisburg

• Decision Date: 08 April 1992
• Docket Number: Civ. A. No. 1:CV-92-0096.
• Citation: 789 F. Supp. 160
• Parties: Paul R. TROUBLEFIELD, Plaintiff, v. CITY OF HARRISBURG, BUREAU OF POLICE, and Officer Dave Salada, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

789 F. Supp. 160

Paul R. TROUBLEFIELD, Plaintiff, v. CITY OF HARRISBURG, BUREAU OF POLICE, and Officer Dave Salada, Defendants.

Civ. A. No. 1:CV-92-0096.

United States District Court, M.D. Pennsylvania.

April 8, 1992.

Peter B. Foster, Eric J. Wiener, Brian J. Puhala, Sr., Handler & Wiener, Harrisburg, Pa., for plaintiff.

Frank J. Lavery, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Harrisburg, Pa., for defendants.

MEMORANDUM

RAMBO, District Judge.

Before the court is the motion to dismiss of defendants City of Harrisburg Bureau of Police and Officer Dave Salada. The motion has been fully briefed, and is now ripe for disposition.

Background

Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The standard for dismissal under Rule 12(b)(6) is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court must "`take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,' and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). "Because 12(b)(6) results in a determination on the merits at an early ... stage ..., the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). As a § 1983 civil rights claim is involved here, the plaintiff must, however, infuse his complaint with "a modicum of factual specificity" over and above what would be required for other claims, "identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Colburn, 838 F.2d at 666.

Therefore, the court will take every allegation pleaded in Mr. Troublefield's complaint as true. According to the complaint, defendant Salada, a Harrisburg city police officer, was dispatched to the vicinity of North Sixth Street in the mid-afternoon of November 8, 1989 in response to a call about a possible car theft. Salada found plaintiff in the front seat of a car. Pistol drawn, Salada asked Troublefield if he owned the car. Troublefield, who was intoxicated, answered "No. I guess you got me."

Salada ordered plaintiff to climb out of the car and lie on the ground. Troublefield complied without protest or struggle, extending himself prostrate, facing the ground. Pistol still drawn, the officer began to search the suspect, and then proceeded to apply handcuffs. As he locked on the handcuffs, Salada started to return his weapon to his holster. Suddenly, the weapon fired, propelling a bullet into Troublefield's leg.

Plaintiff was subsequently taken to the hospital for surgery. The complaint alleges that his injuries resulted in permanent nerve and other physical damage. At this point, plaintiff's medical bills have exceeded $24,000.

In July 1991, plaintiff commenced this suit by praecipe for a writ of summons in the Court of Common Pleas of Dauphin County, Pennsylvania. The complaint posed five separate causes of action, some brought pursuant to 42 U.S.C. § 1983 and some brought under common law tort theories. Plaintiff alleged: 1) that Officer Salada used excessive force in effectuating plaintiff's arrest in contravention of the fourth amendment's stricture against unreasonable searches and seizures; 2) that Salada's actions amounted to a denial of life, liberty or property in violation of the fourteenth amendment's due process clause; 3) that Salada was guilty of negligence under state tort law; 4) that the city's Bureau of Police is liable under the municipal liability doctrine for failure to train or supervise its officer in proper firearm techniques; and 5) that the city had wrongfully permitted Salada to carry a firearm when they were on notice through previous incidents that Salada was not fit to carry a firearm, as well as being vicariously liable.

Defendants removed the action to this court on January 29, 1992. Soon afterward, defendants filed this motion to dismiss.

Discussion

The motion attacks every count of Troublefield's pleading. The court will, accordingly, address each count in order.

I. Fourth Amendment Claim

Plaintiff claims that the officer's actions in making the arrest constituted excessive force and therefore rise to the level of an unreasonable search and seizure in contravention of the fourth amendment of the United States Constitution.

In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the United States Supreme Court held that the fourth amendment and the fourth amendment only applies to excessive force cases arising from an arrest or an investigatory stop. Graham, 490 U.S. at 395, 109 S.Ct. at 1870-71. The Court then endorsed an objective reasonableness test in judging the behavior of the law enforcement officers in making an arrest. The inquiry is whether the officer's actions, given the perspective of a reasonable officer at the scene, was reasonable. Id. at 396, 109 S.Ct. at 1872. A "seizure" occurs when government actors have, "by means of physical force or show of authority, ... in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). "Whenever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985).

Defendant's principal argument is that, given the facts as alleged in the complaint, no seizure occurred implicating fourth amendment rights because there was no intentional act on the part of Salada which resulted in Troublefield's injury.

Plaintiff counters that fourth amendment protections under Graham were triggered as soon as Salada gained custody and control of him, and that, therefore, the officer's conduct must be evaluated under the objective reasonableness test of Graham.

In a case announced just two months prior to Graham, Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Court intimated that only intentional conduct on the part of law enforcement officials invokes the protection of the fourth amendment. Brower concerned a "blind" roadblock — a tractor trailer parked across a highway just around a bend — set up by police officials to stop a fleeing car thief. The thief plowed into the tractor trailer at high rate of speed and was killed. The Court reasoned that such a roadblock constituted a "seizure" of the suspect within the meaning of the fourth amendment. In coming to this conclusion, the court discussed fourth amendment jurisprudence and the limits of protection under that amendment.

The Court first opined that

a violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful. This is implicit in the word "seizure," which can hardly be applied to an unknowing act.

Brower, 489 U.S. at 596, 109 S.Ct. at 1381 (citations omitted). The Court continued that a "seizure" occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." Id. at 597, 109 S.Ct. at 1381 (emphasis in original). Later in the opinion, the Court again emphasized that the fourth amendment is to apply only to volitional behavior:

In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it is enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.

Id. at 598-99, 109 S.Ct. at 1382.

Since the announcement of Brower and Graham, several courts have had the opportunity to apply the analyses set forth in those two cases against the background of an accidental injury to a police suspect in the course of an arrest.

The most recent decision is found in Glasco v. Ballard, 768 F.Supp. 176, 179 (E.D.Va.1991). In that case, a police officer, driving along, spotted a person he suspected of shoplifting. The officer stopped his patrol car and asked the plaintiff and his companion what they had in their pockets. The plaintiff mumbled inaudibly, and the defendant officer began to step out from his car. As he did, the car began to roll forward. The defendant leaned into the car to reach the brake, but in doing so accidently caused his gun to fire, hitting the plaintiff in the neck.

The Glasco court, construing Graham and Brower, held that the accidental shooting did not constitute a seizure of the plaintiff and granted summary judgment. The court rejected the plaintiff's contention that the language in Graham which indicates that an officer's intentions, either good or evil, are irrelevant in a fourth amendment excessive force case dictated that the officer's conduct in firing the shot should be adjudged according to the "objective reasonableness" standard:

Although persuasive when read out of context, the Graham language is less so when read in full. The plaintiff correctly understands the Supreme Court to suggest that intent is irrelevant but confuses the type of "intent" to which the Court is

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