Opinion
Civil Action No. 00-884.
December 17, 2003
MEMORANDUM AND ORDER
Currently before the Court are the Motion for Summary Judgment of Defendants City of Philadelphia, and Police Officers Robert Reamer, Charles Bloom, and Francis Gramlich (Docket Nos. 74 75) and the Plaintiff's Response thereto (Docket No. 78).
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jill Burella ("Plaintiff"), individually and as the guardian of Beth Ann, Nicholas, and Daniella Burella, brings this lawsuit against the City of Philadelphia, various officers of the Philadelphia Police Department, and Dr. Warren Zalut. The lawsuit arises out of the events that transpired in Plaintiff's home on January 12, 1999, when Plaintiff's husband, Officer George Burella, a ten year veteran of the Philadelphia Police Department, shot Plaintiff in the chest and then shot and killed himself.
Officer Burella had for some time before January 12, 1999, suffered from psychiatric problems and exhibited violent behavior toward his wife and children, fellow police officers, and others. He began abusing his wife as early as 1996. He was charged for this conduct by the Lower Southampton Police on February 6, 1996, and was eventually convicted for disorderly conduct. Facing marital problems and a severe gambling addiction, Officer Burella attempted to kill himself on March 16, 1996. He was admitted to a psychiatric hospital for treatment. At that time, Plaintiff alleges she first contacted the Philadelphia Police Department regarding her husband She reported Officer Burella's condition and his abusive behavior to the Department's Employee Assistance Program ("EAP"). Officer Burella began to see a peer counselor and was allegedly placed on restricted duty as an officer.
Medical records reflect that Officer Burella was treated by psychologists, including Defendant Dr. Warren Zalut, and was evaluated by the City of Philadelphia's medical department. In August 1996, the City cleared Officer Burella to return to full active duty, with the caveat that he be evaluated every four months for the next year. Plaintiff alleges that the City failed to reevaluate him after these initial visits.
In 1998, Officer Burella's condition worsened and his abuse toward the Plaintiff grew more frequent and violent. On June 5, 1998, the Plaintiff contacted the Department's Internal Affairs Division ("IAD") to alert the Police Department to Officer Burella's abuse and failing mental health. IAD did not investigate the matter directly, and instead contacted the EAP. Plaintiff also contacted EAP directly a number of times in June 1998 to report abuse.
A few weeks later, on June 26, 1998, Officer Burella assaulted Plaintiff and another man at a Philadelphia bar, prompting witnesses to call 911. Before the police could arrive, Officer Burella fled to the Burella residence where he telephoned the Plaintiff, ordering her to return to the house. Officer Burella said he would shoot their son Nicholas if she did not return immediately. The Plaintiff then called 911 herself and the Philadelphia Police Department responded. The radio call that went out stated that an officer had barricaded himself in the Burella residence with a gun. Once the police arrived, Officer Burella refused to surrender, disobeying direct orders from his superior officers to exit the house. Officer Burella did eventually surrender, but, according to Plaintiff, only because he spoke with Sergeant Ronald Kennedy who agreed to report the entire incident as a domestic disturbance. Defendant Officer Robert Reamer was one of the patrolmen to respond to the initial radio call and was present on the scene.
The police officers that responded to the call left the Burella residence while the Plaintiff was still outside of the house. Once the police left, Officer Burella resumed beating Plaintiff until both of their parents arrived to separate them. Plaintiff went to her parents' house for safety, only to have Officer Burella follow her there and once again resume the beating. Plaintiff alleges she called 911, but that Officer Burella informed the operator he had everything under control. No call went out requesting police to respond. After the June 26, 1998 incident had ended, Plaintiff contacted the EAP to report what had occurred. No investigation of Officer Burella's conduct was ever performed.
Next, on July 13, 1998, Officer Burella made abusive phone calls to the Plaintiff, threatening to kill her while she was at her place of work in Upper Southampton Township. Her co-workers called 911 and Upper Southampton Police responded. The threatening phone calls continued in the presence of the police. Plaintiff called the Philadelphia EAP and the Upper Southampton Police called Defendant Captain Charles Bloom, Officer Burella's supervising officer, to report the threatening calls. The Upper Southampton Police informed Captain Bloom that Officer Burella was a threat to Plaintiff.
On August 13, 1998, Officer Burella attacked Plaintiff at his parents' house in Bucks County. This time, the Northampton Police were called and they took Officer Burella into custody, confiscating his firearm. After receiving a call from the Northampton Police Department, Captain Bloom traveled to Northampton Township, picked up Officer Burella, and escorted him home.
Officer Burella again threatened to kill the Plaintiff on August 16, 1998, while the Plaintiff and the children were visiting Officer Burella's parents. After the initial phone calls, Plaintiff left the house with her father-in-law to obtain a protection from abuse order. The calls continued and Officer Burella's mother called the Northampton Police Department. Meanwhile, Officer Burella had traveled to his parents' house in search of the Plaintiff. Once there, he was escorted back to his own car by the Northampton police who had responded to the mother's 911 call. Officer Burella's firearm was unloaded by police and placed in the trunk of his car. Shortly thereafter, he resumed the threatening phone calls and Northampton Police were called again. The police stopped Officer Burella in the vicinity of his parents' house and found that he had reloaded his gun and placed it in the back seat of his car. Officer Burella was then taken to the hospital where he allegedly was deemed to be a danger to himself and others. The Northampton Police Department again contacted the Philadelphia Police Department and the EAP was informed of the incident. Officer Burella reported to the EAP for counseling. This incident eventually led Captain Bloom to request a psychiatric evaluation of Officer Burella.
Four days later, on August 20, 1998, Officer Burella admitted himself to a psychiatric hospital, but left after only four days of treatment. After leaving the hospital, the City's medical unit saw him on August 28, 1998, and allegedly recommended that it would monitor him for the next two years. The medical unit saw him again on September 22, 1998, but Officer Burella would thereafter never return and the City allegedly failed to monitor him.
On December 24, 1998, Officer Burella was again beating Plaintiff, this time at the house of a family friend. They called 911 and Philadelphia police responded. Officer Burella was permitted to leave with the Burella's daughter Daniella and they went home. The police officers transported Plaintiff and the other two children home, where Officer Burella continued to beat the Plaintiff after the police left.
In January 1999 Plaintiff obtained the protection from abuse orders that are at issue in this case. On January 2, 1999, Plaintiff obtained an emergency ex parte protection from abuse order from the Philadelphia Court of Common Pleas. Defendant Philadelphia Police Officer Reamer, after some alleged reluctance on behalf of the Police Department, served the Order on Officer Burella on January 3. As he was being served, Officer Burella allegedly violated the Order by screaming and threatening the Plaintiff in the presence of Officer Reamer. Officer Burella was still permitted to enter the house in violation of the Order.
At some time before Plaintiff obtained the protection from abuse orders, Defendant Captain Francis Gramlich became Officer Burella's supervisor, taking the place of Captain Bloom.
On January 4, 1999, Plaintiff obtained a temporary ex parte protection from abuse order. On that same day, Plaintiff called 911 because of threatening and harassing phone calls Officer Burella had made. Officers responded and, with the police present, Officer Burella made several more phone calls. The police officers stated that they could do nothing unless Officer Burella was present in the house when they arrived. The officers further stated that Plaintiff would have to contact the district attorney to determine whether or not a warrant for Officer Burella's arrest could be issued. It is unclear whether or not the officers knew a protection from abuse order had been issued. On January 5, 1999, Plaintiff again called the Philadelphia Police Department and was again informed that nothing could be done unless Officer Burella actually went to the Burella residence.
The temporary protection from abuse order was made final on January 8, 1999. Four days later, immediately following an appointment with Defendant Dr. Zalut, Officer Burella went to the Burella residence and shot Plaintiff in the chest. He then shot and killed himself. Plaintiff survived.
Plaintiff filed the instant lawsuit on February 17, 2000. Plaintiff pleads causes of action for federal and state civil rights violations and for infliction of emotional distress. The Complaint has eight separate Counts. The Defendants move for summary judgment against Counts I through VII. Each Count will be considered below, along with Defendants' arguments for summary judgment.
Count VIII sets forth a negligence cause of action against Defendant Dr. Warren J. Zalut. Dr. Zalut is not party to the present Defendants' Motion for Summary Judgment.
II. LEGAL STANDARD
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." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id.
When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).
III. DISCUSSION
A. Count I
Count I asserts a claim under 42 U.S.C. § 1983, in connection with the Pennsylvania Protection from Abuse Act ("PPAA"), 23 Pa. Cons. Stat. Ann. § 6101 et seq., against Officer Robert Reamer, Captain Charles Bloom, and Captain Francis Gramlich in their individual capacities (referred to collectively as the "Officer Defendants"), for their alleged failure to protect Plaintiff from her husband
Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. To prevail under section 1983, a plaintiff must establish (1) that the defendants were "state actors," and (2) that they deprived the plaintiff of a right protected by the Constitution. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
Section 1983 states:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.42 U.S.C. § 1983 (2003); see also Conn v. Gabbert, 526 U.S. 286, 289 (1999); Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
In the instant case, the Officer Defendants do not contest that they are state actors for the purposes of section 1983. Instead, they argue that because they had no affirmative duty to act on the Plaintiff's behalf, they did not violate her due process rights. Thus, the pertinent inquiry for Count I becomes whether the Defendants deprived Plaintiff of a protected right.
Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989), begins with the proposition that in general the due process clause only restricts state action; it does not obligate the state to protect its citizens from one another. See Phila. Police and Fire Ass'n for Handicapped Children, Inc. v. City of Phila., 874 F.2d 156, 167 (3d Cir. 1989) (interpretingDeshaney). Further, Deshaney rejected the contention, formerly espoused by the United States Court of Appeals for the Third Circuit and by other circuit courts, that merely because state officials know of an individual's plight and have declared a desire to help him or her, a special relationship is created that obligates the state to protect the individual. Id. Thus, to survive summary judgment, Plaintiff must point to some source of a constitutional right or else the Officer Defendants are correct that their failure to act on the threat posed by Officer Burella is, under Deshaney, insufficient to sustain a section 1983 claim.
1. The Pennsylvania Protection from Abuse Act and the Protection from Abuse Orders
Plaintiff invokes the Pennsylvania Protection from Abuse Act and protection from abuse orders as sources of her Fourteenth Amendment due process guarantee to police protection. Defendants argue that those sources are insufficient to create a protected property interest.
The Supreme Court of the United States has held that benefits afforded to individuals by state law may create property interests protectible by the federal Due Process Clause. See Regents v. Roth, 408 U.S. 564, 576-78 (1972); Independent Enterprises, Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1177 (3d Cir. 1997). The Roth Court explained that "[t]he Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms." Roth, 408 U.S. at 577. The Court continued, "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. . . . He must, instead, have a legitimate claim of entitlement to it." Id. The Court further explained that the source of property interests is not the Constitution; rather, property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id.
The Third Circuit has found that a state statute alone is insufficient to create a protected property interest. See Brown v. Grabowski, 922 F.2d 1097, 1113 (1991) (explaining that a violation of New Jersey's Domestic Violence Act, standing alone, is insufficient to give rise to section 1983 claim) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)); Phila. Police and Fire Ass'n, 874 F.2d at 166-68 (explaining that a state statute in and of itself cannot create a constitutional right).
The Third Circuit has not reached the specific question of whether the Pennsylvania Protection from Abuse Act combined with protection from abuse orders create a right to police protection. Two courts in the Eastern District of Pennsylvania have addressed the issue. In Hynson v. City of Chester, Alesia Hynson was murdered by her boyfriend a day after the Chester police were called to her home to investigate an incident of domestic violence. See Hynson, 731 F. Supp. 1236 (E.D. Pa. 1990). Hynson's mother and children brought a section 1983 claim against the city and individual Chester police officers. The court ruled that the protection from abuse orders issued on behalf of Hynson did not create a constitutionally protected entitlement to police protection.See Hynson, 731 F. Supp. at 1238-40. The court reasoned that the 1984 version of the PPAA afforded broad discretion to police to formulate their own appropriate response to a violation of a protection order. See id. at 1240. "There is simply nothing in the Protection from Abuse Act that entitles the named individual to the immediate arrest of a person who is claimed to be in violation of a valid order." Id. (analyzing the 1984 version of the PPAA, 35 Pa. Cons. Stat. Ann. 10190(c)). The district court decided that, under the law as it existed in 1984, the orders and the PPAA were not sufficient to support a claim for denial of due process.
In Coffman v. Wilson Police Dep't, the plaintiff, who was mentally and physically abused by her husband, brought a section 1983 claim against the police department and individual officers of Wilson, Pennsylvania, for their failure to enforce a protection from abuse order. See Coffman, 739 F. Supp. 257, 259 (E.D. Pa. 1990). The court agreed with the Hynson analysis that the PPAA did not create an entitlement to protection. However, the court ruled that the protection order itself, issued by a state judge pursuant to the PPAA, did create a property interest protectible by the Due Process Clause. See id. at 263-64 (analyzing the 1990 version of the PPAA) (citing Roth). The court explained that the language of the order plus the fact that the order was served on the police department, giving the department notice, were sufficient to create a Roth entitlement to police protection. See id. at 264 (concluding that "[a]lthough the legislature did not itself grant a protectible interest, it enabled the court to create one").
In the instant case the Philadelphia Court of Common Pleas issued protection from abuse orders pursuant to the PPAA on behalf of Jill Burella. The orders, issued on January 2, 4, and 8, 1999, were each served on Officer George Burella by the Philadelphia Police Department. According to the reasoning set forth in Coffman under very similar facts, the orders alone may be sufficient to afford the Plaintiff an entitlement to police protection from her husband
Revisions made to the PPAA since the Hynson and Coffman decisions solidify Plaintiff's claim that she had a property interest at stake. The version of the PPAA in effect at the time Plaintiff was shot stated, in pertinent part, the following:
Arrest for violation of order. (a) General rule. — An arrest for violation of an order issued pursuant to this chapter . . . may be without warrant upon probable cause whether or not the violation is committed in the presence of the police officer in circumstances where the defendant has violated a provision of an order consistent with [provisions of this chapter]. . . . A police officer shall arrest a defendant for violating an order issued under this chapter. . . .
(b) Seizure of weapons. — Subsequent to an arrest, the police officer shall seize all weapons used or threatened to be used during the violation of the protection order or during prior incidents of abuse. . . . 23 Pa. Cons. Stat. Ann. § 6113(a), (b) (2003) (emphasis added) (amended in 1994 to include the "shall arrest" language of subsec. (a)). Thus, since 1994 state law has mandated the arrest of a person who violates a protection from abuse order. The version of the PPAA analyzed in the previous cases did not include this mandate. The 1994 revisions directly address the Hynson court's concerns that the PPAA left the decision to arrest to the police's discretion. Under the new language, once the order is violated, the statute is clear; the police "shall arrest."
The Court concludes, therefore, that the Plaintiff did possess an entitlement to police protection. Although the state statute alone may be insufficient under Phila. Police Fire Ass'n, the statute coupled with the court-issued protection from abuse orders created for the Plaintiff a Roth entitlement to protection from Officer Burella. The Officer Defendants' summary judgment motion based on their arguments that the Plaintiff was not denied any constitutional right and that they had no affirmative duty to protect her is denied. 2. Qualified Immunity of the Officer Defendants
Plaintiff also argues that Deshaney does not apply to the Officer Defendants' conduct under a state-created danger theory. Because the Court has already decided the Plaintiff possessed aRoth entitlement, it is unnecessary to evaluate this claim.
The Officer Defendants next argue that they are entitled to qualified immunity because, even if Plaintiff possessed an entitlement, her right to be protected from her husband was not clearly established at the time of the alleged violation.
Qualified immunity renders public officials immune from civil liability for discretionary acts performed on the job. Qualified immunity represents a compromise between the conflicting concerns of permitting recovery of damages for vindication of constitutional rights violated by government officials and allowing those officials to perform discretionary functions without fear of harassing litigation. See Hynson v. City of Chester, 864 F.2d 1026, 1031-32 (3d Cir. 1988) (citing Anderson v. Creighton, 483 U.S. 635 (1987)). The defense must be defined in objective, reasonable terms and must be clearly established.See Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982);Bartholomew v. Commw. of Pa., 221 F.3d 425, 428 (3d Cir. 2000). A constitutional right is clearly established "if its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right." Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000). To analyze the Officer Defendants' qualified immunity assertions, then, the Court must determine whether the Plaintiffs' property interest was "clearly established" at the time of the alleged violation. See Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir. 1994) (enunciating the governing inquiries a court should employ when determining whether a right is clearly established).
The Supreme Court has stated:
Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequence.Harlow, 457 U.S. at 819 (quoted in Hynson, 864 F.2d at 1032).
In describing the relationship between state law and qualified immunity, the Third Circuit has recognized that officials do not forfeit qualified immunity from suit because they failed to comply with a clear state statute. See Doe v. Delie, 257 F.3d 309, 318-19 (3d Cir. 2001) (citing Davis v. Scherer, 468 U.S. 183, 195 (1984)). However, that rule does not apply when the property interest protected by the Fourteenth Amendment is created by the state law allegedly violated. See id. at 319 n. 6 (citing Roth, 408 U.S. at 577). When that is the circumstance, as is the case here, "the state law may bear upon a claim under the Due Process clause." Id. The contours of Plaintiff's entitlement, therefore, are defined by the sources of the entitlement, the protection from abuse orders and the PPAA.See Roth, 408 U.S. at 578 (explaining that property interests are defined by the mechanisms that create them, for example, a state statute or an employment contract).
The version of the PPAA in effect since 1994 states that a police officer shall arrest a defendant for violating a protection from abuse order and, upon a violation, shall seize the defendant's weapons. See 23 Pa. Cons. Stat. Ann. § 6113(a), (b). Further, the three protection from abuse orders each made clear that Officer Burella was to "refrain from abusing, harassing, stalking and/or threatening the plaintiff Jill Burella, . . . or placing [her] in fear of abuse in any place where [she] may be found." EmergencyEx Parte Protection from Abuse Order issued Jan. 4, 1999 (Docket No. 78, Ex. 32). The Orders further enjoined Officer Burella from visiting, entering, or attempting to enter the marital home. Lastly, the Orders made clear that the police were to arrest Officer Burella if he failed to comply with them.
The first court order issued to protect the Plaintiff by the Philadelphia Court of Common Pleas was an emergency ex parte protection from abuse order in effect from January 2, 1999, through January 4, 1999. The first order required Officer Burella to "refrain from abusing, harassing, stalking and/or threatening the plaintiff Jill Burella, . . . or placing [her] in fear of abuse in any place where [she] may be found" (Docket No. 78, Ex. 32). The order further enjoined Officer Burella from attempting to enter or from visiting the Plaintiff's residence and also instructed police to arrest the defendant if he failed to comply with the order. On January 3, 1999, at 4:35 p.m., Defendant Officer Reamer served the order on Officer Burella.
The second order, a temporary ex parte order, was issued on January 4, 1999, this time adding the Burella children, Bethann, Danielle, and Nicholas, to the list of those to be protected. The January 4 order also ordered the following:
The Respondent [George Burella] is directed to relinquish immediately the following weapons(s) to the Sheriff of Philadelphia County: All guns other than service firearm. Service firearm is to be turned in to Respondent's Commanding Officer at the end of each shift, and picked up from C.O. at the start of each shift. Respondent shall not acquire further firearms.
(Docket No. 78, Ex. 34). Again, the order instructed police to arrest Officer Burella if he violated the order.
On January 8, 1999, the Common Pleas Court issued a final order restraining Officer Burella, granting temporary custody of the children to the Plaintiff, and notifying the Philadelphia Police Department of their duty under the PPAA § 6113. Conspicuously crossed out on the order is the language requiring Officer Burella to relinquish his weapons (Docket No. 78, Ex. 37). Under the statute and the order, police were still under an obligation to arrest Officer Burella upon violation of the order.
Given the sources of Plaintiff's property interest, the contours of Plaintiff's right to be protected from Officer Burella were clearly established at the time she alleges the Defendants violated it. Any officer who had notice of the protection from abuse orders can be expected to have understood that failure to enforce the orders was a potential violation of the law. In fact, the Defendants admit that the official written policy of the Police Department governing domestic violence accurately reflected an officer's duty to arrest under Pennsylvania law. Defs.' Brief in Sup. of Mot. for S.J., at 35. Further, the mandates of the PPAA and the Orders themselves are clear and were allegedly known to the police force at the time Plaintiff was shot. That is not to say that any officers with notice of the Orders are necessarily liable for failing to protect Jill Burella. The Court concludes only that Plaintiff's entitlement was clearly established for purposes of the Officer Defendants' qualified immunity claims.
The next issue before the Court is to determine whether or not a reasonable jury could find that the Officer Defendants deprived Plaintiff of her entitlement. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 827-28 (3d Cir. 1997) (declaring that the reasonableness of police officer's actions are jury questions);Pahle v. Colebrookdale Twp., 227 F. Supp.2d 361, 373 (E.D. Pa. 2002) (explaining that officer's determination of probable cause to arrest and use excessive force are questions of fact to be determined by a jury). Thus, the Court must evaluate the alleged actions of each officer. a. Officer Reamer
Officer Reamer served the first protection from abuse order on Officer Burella on January 3, 1999, at about 4:35 pm. Plaintiff alleges that after the Order was served and while Officer Reamer was escorting Officer Burella to the Burella's home, Officer Burella violated the Order by screaming at, yelling at, and threatening Plaintiff. Officer Reamer did not arrest Officer Burella. It is further alleged that Officer Reamer knew of Officer Burella's violent tendencies long before January 3, 1999, having responded to the radio call on June 26, 1998, when Officer Burella was barricaded in his house and threatening to shoot Plaintiff and their children. Officer Reamer allegedly recalled that event on the day he served the protection order on Officer Burella. These factual allegations are sufficient to create genuine issues of material fact as to the reasonableness of Officer Reamer's decision not to arrest Officer Burella at that time. Accordingly, summary judgment on Count I as to Officer Reamer is denied.
b. Captain Gramlich
Captain Gramlich was Officer Burella's supervisor at the time Plaintiff obtained the protection orders. Plaintiff alleges that, as supervisor, Captain Gramlich was responsible for confiscating Officer Burella's firearm at the end of all shifts. Plaintiff further alleges that Officer Gramlich either knew of or was willfully blind to the existence of the protection from abuse orders. Lastly, Plaintiff alleges that Captain Gramlich, like Officer Reamer, knew of Officer Burella's threats and violence toward the Plaintiff by reviewing Officer Burella's personnel files. Plaintiff has created an issue of material fact as to Captain Gramlich's conduct. Summary judgment on Count I as to Captain Gramlich is denied.
c. Captain Bloom
Plaintiff alleges that Captain Bloom was aware of Officer Burella's violence against her as early as July 1998 and that Captain Bloom even offered to help the Burella family if Officer Burella became violent. Plaintiff alleges no facts, however, to show that Captain Bloom failed to protect Jill Burella once the first protection from abuse order was issued on January 2, 1999. It is not enough to allege, as Plaintiff does, that Captain Bloom failed to act on the threats Officer Burella posed to his family up to and including January 1, 1999. Even if that were proven at trial, as a matter of law it cannot be said that Captain Bloom deprived the Plaintiff of her entitlement to protection because that entitlement did not yet exist. Accordingly, summary judgment on Count I is granted in favor of Defendant Captain Bloom.
B. Count II
Count II asserts a section 1983 claim against the City of Philadelphia claiming that its defective policies and customs, and its training and supervision of police officers, violate the entitlement to police protection of domestic violence victims who have been issued protection from abuse orders. The City moves for summary judgment arguing that Plaintiff has failed to produce any evidence of the existence of a policy or custom, as required by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), and that its training of officers does not reflect "deliberate indifference," as required by City of Canton v. Harris, 436 U.S. 658 (1978).
Count II must be distinguished from Count III. Here, Plaintiff asserts a 1983 claim against the City for its policies that allegedly violate the Plaintiff's and others' entitlement to police protection. In Count III, as will be discussed below, Plaintiff asserts a 1983 claim against the City because its policies violate the Equal Protection clause by discriminating against female victims of domestic violence.
In Monell, the Supreme Court of the United States ruled that a municipality is a "person" under federal civil rights statutes and that it can be found liable under section 1983. See Monell, 436 U.S. at 690, 694-95. To establish a claim, a plaintiff must predicate his recovery on the existence of a particular official municipal policy or established custom. See id.; City of Okla. City v. Tuttle, 471 U.S. 808, 829 (1985) (plurality opinion) (Brennan, J., concurring). Further, a plaintiff must prove that this policy or custom caused the deprivation of a constitutional right. See Tuttle, 471 U.S. at 829-30; City of Canton v. Harris, 489 U.S. 378, 385 (1989).
The first issue facing the Court is whether Plaintiff has alleged facts sufficient to prove the existence of a policy or custom. A "[p]olicy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict."Bielevicz v. Dubinon, 915 F.2d 845, 850 (1990) (internal quotations omitted). "Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically authorized by law, is so well settled and permanent as virtually to constitute law." Id. The existence of a "[c]ustom may be established by proof of knowledge and acquiescence." Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989).
Plaintiff argues that the Police Department's "Directive 90" embodies an affirmative policy of the City that violates the mandates of court protection from abuse orders and the Pennsylvania Protection from Abuse Act. Further, Plaintiff argues that it has been the Police Department's customary practice to not make mandatory arrests of persons in violation of protection from abuse orders. The City of Philadelphia argues that Directive 90 is entirely lawful and that the custom described by Plaintiff does not exist.
Philadelphia Police Department Directive 90 reflects the Department's "written policy governing domestic abuse violence."See Def.'s Mot. for Sum. J., at 34 (Docket No. 74). Despite the fact that the version of Directive 90 in effect when the Plaintiff was shot is dated and unclear, it does instruct officers to arrest a person upon probable cause that the person has violated a protection from abuse order. Directive 90 states, in pertinent part:
IV. PROCEDURE
A. REQUIRED BY LAW — In every assignment alleging domestic abuse of violence, the first officer on the scene will advise the victim or complainant of the proper procedure for seeking a Petition for Relief from Abuse and hand person the Notice of Rights/Referral Card for Domestic Abuse Victims. . . .
D. If victim or complainant states that there is a Protection from Abuse Court Order, in addition to any action taken under Section IV-A: . . .
2. Upon probable cause that a violation of the Protection From Abuse Court Order has occurred, arrest the defendant and transport to the Detective Division of Occurrence.
Directive 90, p. 4 (Docket No. 75, Ex. M) (emphasis added). Although the Directive falls short of expressly stating that an arrest would be required by law, the Directive indicates that an officer should arrest a defendant for violating a protection order. Thus, the Directive loosely conforms with the requirement of the PPAA that officers must arrest a defendant in violation of a protection order. It may be true, as Plaintiff explains, that the Directive is based on the 1986 version of the PPAA and was put into effect in April 1986, long before the 1994 revisions made it mandatory for an officer to arrest a person for violating a protection order. Nonetheless, the written policy itself cannot be read to clearly violate the PPAA.
Whereas Section IV may indicate that it was City policy to arrest defendants who violate court protection orders, that indication is contradicted by other sections of the Directive. For example, Section II, entitled "Police Power to Arrest," informs police officers of their power to make a warrantless arrest if a court order is violated, but does not indicate that Pennsylvania law requires them to do so.
Plaintiff next argues that a custom or course of conduct among the City's police officers to not enforce protection orders existed at the time Plaintiff was shot. Plaintiff alleges that police officers were confused as to their authority under the law to arrest violators of protection orders. Plaintiff also alleges that officers did not know whether to make an arrest for a violation of an order or to just advise the complainant of his or her rights. It is further alleged that the City knew of the confusion among its police officers for some time prior to January 12, 1999, when the Plaintiff was shot.
Given the standard for proving the existence of a custom, and given the Plaintiff's factual allegations, the Court finds that a reasonable jury may conclude there was an unlawful custom in effect. See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966, 976 (holding that plaintiff "presented sufficient evidence from which a reasonable jury could have inferred that the City of Pittsburgh knew about and acquiesced in a custom of tolerating the tacit use of excessive force by its police officers").
It is not sufficient for a plaintiff to prove the mere existence of a policy or custom. "A plaintiff bears the additional burden of proving that the municipal practice was the proximate cause of the injuries suffered." Bielevicz, 915 F.2d at 850. The Third Circuit has held that the causation inquiry is mainly a fact question to be determined by a jury. See, e.g., Bielevicz, 915 F.2d at 851 (explaining that once a plaintiff meets a threshold of specificity regarding the existence of a custom, the question of legal cause should be left for a jury);Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988) (allowing complaint to survive motion to dismiss despite the fact that the "nexus" between the policy and the violation may be difficult to prove). Here, the Court determines that a reasonable jury could conclude that the alleged custom of failing to enforce protection orders was the proximate cause of the Plaintiff's injury. Accordingly, summary judgment in favor of the City of Philadelphia on Count II is denied. C. Counts III and IV
It is therefore unnecessary to evaluate Plaintiff's allegations of inadequate training.
Counts III and IV assert section 1983 claims for a violation of federal equal protection laws against the City of Philadelphia and the Officer Defendants, respectively, claiming that the Police Department's policies discriminate against victims of domestic abuse. In the proceedings before the Court of Appeals for Hynson v. City of Chester, the Third Circuit stated that "if the categories used by the police in administering the law are domestic violence and nondomestic violence, this is not sufficient to raise a claim for gender-based discrimination absent a showing of an intent, purpose or effect of discriminating against women." Hynson, 864 F.3d 1026, 1031 (3d Cir. 1988). The court then announced for the first time the prima facie elements for equal protection claims arising out of facially neutral policies that allegedly discriminate against victims of domestic abuse. The court stated:
In order to survive summary judgment, a plaintiff must proffer sufficient evidence that would allow a reasonable jury to infer [1] that it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence, [2] that the discrimination against women was a motivating factor, and [3] that the plaintiff was injured by the policy or custom.Hynson, 864 F.3d at 1031 (adopting reasoning of Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir. 1988)); see also Brown v. Grabowski, 922 F.2d 1097, 1117 (3d Cir. 1991).
In Part III.B above, this Court decided that Plaintiff had offered sufficient evidence for a reasonable jury to conclude that the City had an unlawful custom of failing to enforce protection from abuse orders. That analysis is applicable here. Because there is sufficient evidence for a jury to infer that the City is not enforcing protection orders issued on behalf of domestic violence victims, the Court finds that evidence is sufficient to infer the existence of a custom to provide less protection to domestic abuse victims than to other victims of violence. Thus, the first element of the Hynson analysis is satisfied.
Plaintiff must next prove that discrimination against women was a motivating factor in the discrimination against domestic violence victims; if gender discrimination was not a motivating factor, the City's policy will receive a rational basis review.See Hynson, 864 F.3d at 1031. As proof of discriminatory intent, Plaintiff cites the deposition testimony of Sergeant Francis Healy, who was the Special Assistant to then-Police Commissioner John Timoney and was designated by the City as its representative for certain purposes of this litigation. Sergeant Healey stated that victims of domestic violence are predominantly women. See Healey Dep. at 139 (Docket No. 78, Ex. 39). Plaintiff also has a report that finds the Philadelphia Police Department has discriminated against female victims of domestic violence. See Preliminary Expert Report of Lou Reiter, at 30 (Docket No. 78, Ex. 46). Lastly, Plaintiff offers the manner in which the Police Department handled her own domestic abuse situation.
Plaintiff provides no other support for the assertion that discrimination against domestic violence victims amounts to gender discrimination against women. However, because the Court's role in deciding motions for summary judgment is not to weigh the evidence and because all reasonable inferences must be drawn in a light most favorable to the Plaintiff, the Court finds that the evidence adduced by Plaintiff is sufficient to create a genuine issue of material fact as to whether the City's custom discriminated against women. Prong two of the Hynson analysis is satisfied.
The third prong of the Hynson analysis is causation. Plaintiff must prove that she was injured because of the Defendant's custom. As the Court stated in Part III.B above, the causation inquiry is one of fact to be decided by a jury. Accordingly, the Court finds that a reasonable jury could conclude that the alleged custom of discriminating against female victims of domestic violence was the proximate cause of Plaintiff's injury. Summary judgment in favor of the City of Philadelphia on Count III is denied.
1. Qualified Immunity of the Officer Defendants
The Court must next inquire whether the Plaintiff's equal protection right was clearly established at the time of her injury such that the Officer Defendants lose their qualified immunity from suit. See Hynson, 864 F.2d at 1031-32. In the 1988 Hynson decision, the Third Circuit announced a new equal protection rule for victims of domestic abuse. In the 1991Grabowski decision, the Third Circuit held that the plaintiff's equal protection right was not clearly established at the time it was allegedly violated by police officers, because the alleged violation occurred three years before the Hynson pronouncement.See Grabowski, 922 F.2d at 1118-19. The Grabowski court indicated, however, that as of 1991, an equal protection right had been clearly established. See id. ("Our survey of these cases and materials strongly suggests that, in 1985, the equal protection rights of domestic violence victims were far less recognized and defined than they are today.").
Here, Plaintiff's equal protection right was allegedly violated in 1998 and 1999, almost ten years after Hynson established the right and seven years after Grabowski affirmed its existence. This Court finds that by 1998 the equal protection right of domestic violence victims was clearly established such that the Officer Defendants are not entitled to qualified immunity. Accordingly, the ultimate question of whether or not the Officer Defendants violated Plaintiff's equal protection rights should be left to a jury. Summary judgment in favor of the Officer Defendants on Count IV is denied. D. Counts V and VI
Summary judgment on the equal protection claim is denied as to all three Officer Defendants. Captain Bloom was granted summary judgment on Count I because his conduct occurred before the issuance of Plaintiff's protection from abuse orders. A reasonable jury, however, could conclude that Captain Bloom's conduct violated the Plaintiff's equal protection rights, which existed before the protection from abuse orders were issued.
Counts V and VI assert claims against the individual officer defendants for violation of Pennsylvania equal protection laws. Pennsylvania's equal protection provision is set forth in Article I, section 26, of the Pennsylvania Constitution. It provides, "Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right." "This provision is analyzed under the same standards used by the United States Supreme Court when reviewing equal protection claims under the Fourteenth Amendment." Small v. Horn, 554 Pa. 600, 615 n. 13 (1998) (citing Love v. Borough of Stroudsburg, 528 Pa. 320 (1991)). The Court has already denied Defendants' motion for summary judgment on the federal equal protection claim. Therefore, summary judgment as to the state law claim is denied, as well.
E. Count VII
Count VII asserts claims for intentional infliction of emotional distress and negligent infliction of emotional distress. Each will be discussed in turn.
1. Intentional Infliction of Emotional Distress
In Pennsylvania,"[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. . . ." Restatement (Second) of Torts § 46(1) (1965);Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979); Forster v. Manchester, 410 Pa. 192, 199 (1963). The Pennsylvania Supreme Court has enunciated an objective standard to evaluate the plaintiff's alleged injury, allowing recovery only "where a reasonable person normally constituted would be unable to adequately cope with the mental stress engendered by the circumstances of the event." Kazatsky v. King David Memorial Park, 515 Pa. 183, 193-94 (1987); see also Moser v. Bascelli, 865 F. Supp. 249, 253 (E.D. Pa. 1994) (refusing to dismiss intentional infliction of emotional distress claim against defendant police officer).
In light of the standard enunciated above and given the facts as viewed in a light most favorable to Plaintiff, the Court finds that a reasonable jury may conclude that the Officer Defendants acted with knowledge or reckless disregard that severe emotional distress would result from their conduct.
2. Negligent infliction of emotional distress
The Pennsylvania Tort Claims Act provides that local agencies are immune from any lawsuit brought under a negligence theory based on the acts of the agency or of an employee. See 42 Pa. Cons. Stat. Ann. §§ 8541, 8542(a) (1998); Moser v. Bascelli, 865 F. Supp. 249, 253-54 (E.D. Pa. 1994). Immunity is lost only if the cause of action relates to one of eight categories that are inapplicable to this case. See 42 Pa. Cons. Stat. Ann. § 8542(b)(1)-(8). Further, section 8545 of the Act provides that an employee of a local agency is liable only to the same extent as his employing local agency. Thus, because the Police Department is immune from the Plaintiff's causes of action in negligence, the Officer Defendants are also immune.
Summary judgment in favor of the Officer Defendants is granted as to Plaintiff's negligent infliction of emotional distress claim and denied as to Plaintiff's intentional infliction of emotional distress claim.
An appropriate Order follows.
ORDER
AND NOW, this 17th day of December, 2003, upon consideration of the Motion for Summary Judgment of Defendants City of Philadelphia, Robert Reamer, Charles Bloom, and Francis Gramlich (Docket Nos. 74 75), the Plaintiffs' Response thereto (Docket No. 78), and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED that the Defendants' Motion is GRANTED in part and DENIED in part, as follows:(1) Summary judgment is GRANTED in favor of Captain Bloom as to Count I;
(2) To the extent that Count VII sets forth a claim for negligence or for negligent infliction of emotional distress, summary judgment in favor of all Defendants is GRANTED; and
(3) Summary judgment on all other counts is DENIED.