Washington-Pope v. City of Phila., Civil Action No. 12–4300.

• Decision Date: 22 October 2013
• Docket Number: Civil Action No. 12–4300.
• Parties: Yolaina WASHINGTON–POPE, Plaintiff, v. CITY OF PHILADELPHIA et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

979 F.Supp.2d 544

Yolaina WASHINGTON–POPE, Plaintiff,

v.CITY OF PHILADELPHIA et al., Defendants.

Civil Action No. 12–4300.

United States District Court,

E.D. Pennsylvania.

Oct. 22, 2013.

Jonathan M. Cohen, Jonathan M. Cohen, LLC, Philadelphia, PA, for Plaintiff.

Mark Maguire, Philadelphia Office of City Solicitor, Jeffrey M. Scott, Archer & Greiner, Philadelphia, PA, Theresa L. Concepcion, Hinshaw & Culbertson LLP, New York, NY, for Defendants.

MEMORANDUM

PRATTER, District Judge.

Officer Yolaina Washington–Pope's harrowing ordeal raises the question of whether an on-duty, in-uniform police officer, who raises his service weapon to his partner's temple as their exchange of words in their police cruiser rapidly escalates, acts under color of state law for purposes of 42 U.S.C. § 1983. Although the facts of this case and Ms. Washington–Pope's experiences are doubtlessly distressing, the Third Circuit Court of Appeals' precedent, the acknowledged purposes of § 1983, and more analogous case law from other courts constrain this Court to answer that question in the negative. This case serves as a sobering reminder that federal law does not provide a remedy for every wrong or even every horrifying injury.

Because Officer Washington–Pope's ex-partner and now—Defendant Officer William Bailey did not act under color of state law when he drew his gun on her, as discussed in greater detail below, the Court grants his Motion for Summary Judgment and dismisses the claims against him with prejudice. The Court also denies the City of Philadelphia's Motion to Dismiss, with prejudice only as to the City's argument concerning independent municipal liability raised in Section C of the its Memorandum.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to Federal Rule of Civil Procedure 56, the Court canvasses the material facts and construes all reasonable inferences from them in favor of Plaintiff Ms. Washington–Pope, the nonmovant. As a result, the operative facts for present purposes are as follows.

Soon after Philadelphia Police Officers Bailey and Washington–Pope began driving to the scene of a domestic dispute, their first assignment during the graveyard shift on September 24, 2010, Officer Bailey, who was driving, stopped the car, got out, and looked under it and then in the trunk. Puzzled, Officer Washington–Pope asked him what was wrong. Officer Bailey said he had heard noises, though she had not. Back in the car, the partners reached their destination and when no one answered the door, they headed to their second assignment.

After concluding their second assignment without incident, the officers began cruising toward their third. But Officer Bailey drove in the wrong direction and began slowing down before speeding back up while looking in the side-view mirror. He then stopped the car, put it in reverse, and slowly backed up. When Officer Washington–Pope asked him what he saw, he claimed that the “car behind us is following me. Every time I slow down they slow down and every time I speed up they speed up; look at them, they are backing up like me.” Officer Bailey turned the police cruiser around and the vehicle behind them continued down the street away from them.

At about this point, Officer Washington–Pope remembered a conversation she had had with another officer about a time that Officer Bailey had reportedly behaved oddly. According to the other officer, Officer Bailey had refused to get out of his police car after a tour of duty until a lieutenant approached him, at which point Officer Bailey sprang from the vehicle and ran around the parking lot, pursued by other officers. According to her deposition testimony, Officer Washington–Pope did not know, on the night of September 24, 2010, whether Officer Bailey's strange behavior had occurred because he had diabetes or he was otherwise ill.

With this hazy hearsay story in mind on September 24, 2010, Officer Washington–Pope turned to Mr. Bailey and asked him whether he had taken his medication. He responded, “And what medication would that be?” She retorted, sarcastically, “Your psychotic meds,” and then, “Your sugar medication.”

“No, I did not,” he responded, while pointing his finger at her. By now, Officer Bailey was again driving past the address of their third assignment, and at some point Officer Washington–Pope told him to turn around. Officer Bailey said, “Why would you ask me that?”

“Because you're f—ing tripping,” said Officer Washington–Pope.

Officer Bailey: “You got a problem with me?”

Officer Washington–Pope: “Yeah, you're f—ing tripping.”

Officer Bailey, pulling up to the corner and about to make a left: “Say it again.” He unsnapped his holster.

Officer Washington–Pope, not looking at Officer Bailey, but rather down at the paperwork she was writing: “You're f—ing tripping.”

Officer Bailey put his service weapon in his lap and, turning the corner towards the address of their third assignment, said, “I bet you won't say it again.” Turning to face him, Officer Washington–Pope stared into the barrel of Officer Bailey's gun and saw his “cold,” “mean look.”

The words, “You're f—ing tripping,” were again at the tip of her tongue, but something clicked in her mind at that moment, and she realized it was time for her to “stop playing.” She remembered then that it was not unusual for Officer Bailey to take things too far or handle matters with a “violent undertone”—although she could not understand why he had drawn his gun on her.

Thinking she might escape from the car, Officer Washington–Pope tried the door handle, but she could not release the lock. She thought she might draw her own gun, but because of her vest and position she thought the effort would be futile. She considered tasing Officer Bailey, but worried that even if she could, his muscles might involuntarily tense and his finger, flinching, pull the trigger. So she exercised the one option she thought she had left.

“Bailey, you really gonna point a gun at me, really?” Officer Bailey said nothing. “Bailey, you really going to shoot me? Is that what you're going to do?” He still said nothing. She repeated the words, which he met with silence and what Officer Washington–Pope described as an empty, menacing stare.

And then, although Officer Washington–Pope did not say how much time passed, Officer Bailey holstered the gun and asked, “Now, what now?”

The two continued on to their next assignment.

* * *

The early morning's events of September 24, 2010, had not yet drawn to a close. Officer Washington–Pope attempted to get into the driver's seat or, barring that, to convince Officer Bailey to drive back to headquarters so she could deal with what had happened. At first he refused and instead took off after a driver who he had seen run a red light and who turned out to be under the influence. According to Officer Washington–Pope, Officer Bailey behaved oddly toward the suspect, but soon Officer Washington–Pope was finally able to prevail on him to drive back to headquarters. After they arrived, Officer Bailey began hitting his vest and arguing with it, and only by convincing him that she was helping to fix his vest was Officer Washington–Pope able to disarm him. Then she drove him to the hospital.

Mr. Bailey has had type I diabetes since he was nine years old, and has experienced hypoglycemic episodes that, according to the parties' experts, can lead to odd behavior. The parties, through their experts, dispute whether Officer Bailey was experiencing such an event at the moment he drew his gun on Officer Washington–Pope, as well as whether, if he was, he could have formed, and did form, the intent to do so. Mr. Bailey also claims that he does not remember drawing his gun on Ms. Washington–Pope, although she contends that he does.

* * *

Ms. Washington–Pope sued Mr. Bailey and the City of Philadelphia under 42 U.S.C. § 1983. In the first count of her First Amended Complaint, Ms. Washington–Pope alleged that Officer Bailey had violated her rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution by unlawfully and unreasonably seizing her at gunpoint and causing her significant mental anguish and emotional distress, as well as medical expenses, loss of future earnings, and other injuries. In the second count, she alleged that the City, knowing of Officer Bailey's diabetes and his violent tendencies, also knew that Ms. Washington–Pope was at risk of being assaulted by him. She contends that the City was deliberately indifferent to the conduct of Officer Bailey as well as other police officers with regard to their responsibility to supervise Officer Bailey, who was not physically or mentally fit to serve as a Philadelphia Police Officer. Because Officer Bailey violated her rights to liberty, bodily integrity, and freedom from unreasonable search and seizure, Ms. Washington–Pope alleges, the City's deliberate indifference to the risk of his actions renders it independently liable under § 1983 for violating her substantive due process rights.

After he moved for and received an extension of time to file his Answer, Mr. Bailey instead moved for summary judgment. The City answered on October 15, 2012. Ms. Washington–Pope responded to Mr. Bailey's Motion for Summary Judgment and, following an initial pretrial conference, the Court denied Mr. Bailey's Motion for Summary Judgment in order to give the parties time to conduct discovery. The Court ordered that the deadlines then set “pertain[ed only] to discovery and briefing related to the issues discussed in Mr. Bailey's Motion for Summary Judgment” (Docket No. 12 at 1 n. 1).

After several months of discovery, Mr. Bailey again moved for summary judgment. The City followed his lead and also moved for summary judgment. Ms. Washington–Pope responded separately to Mr. Bailey's second Motion for Summary Judgment and to the City's. In her response to the City, Ms. Washington–Pope explained that because discovery under the Court's prior order “was...