Summary
In Dunn, the court did not consider manifest injustice, but rather whether the pro se party could be excused in his failure to conduct diligent discovery.
Summary of this case from Mack v. Yankah (In re Yankah)Opinion
No. 94-233
March 13, 2002
ORDER
AND NOW, this 15th day of March, 2002, it appearing that there were clerical errors in the court's Memorandum of March 13, 2002, it is ORDERED that the court's Memorandum and Order is VACATED, and the Clerk shall file the attached Memorandum and Order nunc pro tunc in its place.
MEMORANDUM AND ORDER
Lamont Dunn ("Dunn or plaintiff"), filing this action pro se against Officer Thomas Harris ("Harris") and the City of Pittsburgh ("City"), alleged: (1) Harris had arrested him without probable cause and used excessive force in violation of 42 U.S.C. § 1983; and (2) the City had a policy and practice of permitting officers to beat African-Americans without justification or repercussion.
Lamont Dunn died during the pendency of this litigation. Cheryl Dunn has been substituted as administrix of his estate. This opinion refers to the plaintiff throughout as "Dunn", and uses masculine pronouns.
The City moved for Summary Judgment under Monell. Summary Judgment was granted and the action proceeded against Harris alone.
Counsel, appointed to represent plaintiff, immediately moved for reconsideration of the Summary Judgment decision. Decision on the motion for reconsideration was deferred pending the outcome of the trial against Harris. A jury trial, held June 7, 8, and 9, 1999, resulted in a verdict in favor of Harris.
Plaintiff moves the court for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) or a new trial under Rule 59(a). He claims that the jury's verdict was contrary to the evidence presented at trial.
Because the verdicts rendered on the claims of arrest without probable cause and excessive force were against the clear weight of the evidence, the plaintiff is entitled to a new trial. However, the motion for judgment as a matter of law will be denied.
Plaintiff also requests that this court address plaintiff's motion to reconsider the order granting Summary Judgment to the defendant City of Pittsburgh, disposition of which was deferred pending the jury's verdict. This motion will be granted.
I. MOTIONS FOR JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL ON THE CLAIMS AGAINST HARRIS A. Factual Background
A court, addressing a motion for judgment as a matter of law or a motion for a new trial, must view the facts in the light most favorable to the party prevailing at trial, see Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), 50 disputed facts are considered as contended by the defendant at trial.
On March 31, 1992, Dunn was driving home from work on a motor scooter when he struck an automobile from behind. The accident was minor; no one was injured. It occurred near the intersection of Centre Avenue and Devillers Street, in close proximity to the Zone Two police station. The driver of the automobile, Mark Premo ("Premo"), and Dunn decided to go to the police station and complete an accident report. They were accompanied by Susan Dart ("Dart"), a passenger in Premo's automobile at the time of the accident.
Harris was assigned to desk duty in the Zone Two police station that evening. He initially attempted to find an officer assigned to street duty to complete the accident report, but could not locate one. See Trial Tr., Vol. III, at 30 (Thomas Harris). Harris resented having to take the report; he did not believe it was an appropriate task for a desk officer. See id.
Harris began questioning Premo, Dunn, and Dart to obtain the information necessary to fill out the state accident report. See id. at 30-32. Dunn resisted providing the required information. See id. at 33. "He was rambling, babbling about things that didn't have anything to do with a proper response to legally required questions." Id., at 33. Harris felt Dunn "was grossly inhibiting the smooth, expeditious taking of this report." Id. at 36.
Dunn's non-responsiveness caused Harris to press Dunn for the answers.See id. at 35-36. Harris checked the information provided in the computer and learned that Dunn's driver's license was suspended. See id. at 37. Harris confronted Dunn with this information, and Dunn became hostile.See id. at 37. Harris characterized the hostility exhibited by Dunn, saying "[h]e was raising his voice to me. . . I believe he was becoming angry." Id. at 39.
This behavior caused Harris to "get irritated." Id. at 38-39. Harris raised his voice at Dunn. See id. at 39. He told Dunn to "stop acting like a little faggot, and give me the information I need." Id. at 69. Dunn reacted strongly and demanded Harris take the remark back. See id. at 88. Harris then told Dunn to "settle down, sit down." Id. at 38.
Dunn sat down as requested, but made finger gestures and pointed at Harris. See id. at 40. Harris described the gesture as "forming his finger in the shape of what [he] believed to be a gun." Id. at 42. Harris found the gesture "threatening" and possibly alarming to the civilians."Id. at 40. Harris noted, "[i]t was faint and slight but, obviously directed at [him]." Id. at 42. Harris "became extremely angry," and threatened to arrest Dunn if the behavior continued. Id. at 41.
Dunn continued to refuse to answer Harris' questions, see id. at 42, 50 Harris hurdled the desk, and "attempted to affect an arrest." Id. at 42-43. He grabbed Dunn near the "shoulder or lapel area . . . and attempted to turn him around so [he] could put cuffs on him." Id. at 43. A scuffle followed. Id. "During the struggle, [Dunn] fell to the floor."Id.
After his arrest, Dunn was placed in an area just outside the holding cells. He was kept there, handcuffed, for a period and then released. Upon his release, he was issued a citation for summary disorderly conduct.
After a hearing before a magistrate judge where both Dunn and Harris were heard, the charge of summary disorderly conduct was dismissed. Harris received a one-day suspension in connection with this incident for violating the department policies on conduct towards the public and use of force. See id. at 107-8 112. The suspension was upheld, despite Harris' appeal. See id. at 112-13.
B. Section 1983 Claims:
Dunn asserted two claims against Harris for violation of 42 U.S.C. § 1983. Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person with in the jurisdiction thereof 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.42 U.S.C. § 1983. To prove a claim under § 1983, a plaintiff must show: (1) the defendant deprived him of a federal right; and (2) the defendant deprived him of that right while acting under the color of state or territorial law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
Harris admitted he was acting under color of state law: the only issue at trial was whether his behavior violated Dunn's constitutional rights. Dunn alleged that Harris violated the Fourth Amendment's protections against arrest without probable cause and excessive force. The jury found in favor of Harris.
C. Standard of Review:
1. Motion for Judgment as a Matter of Law
A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury's verdict." Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997). A court may only grant the motion when "there is no legally sufficient evidentiary basis for a reasonable jury to find for the [verdict winner]." Fed.R.Civ.P. 50. In making this finding, the court, viewing the facts in the light most favorable to the verdict winner, must also afford that party the benefit of all reasonable inferences. See Black v. Stephens 662 F.2d 181 (3d Cir. 1981).
2. Motion for a New Trial
Federal Rule of Civil Procedure 50 provides:
if the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.
Fed.R.Civ.P. 50(c)(1). The court must address plaintiff's motion for a new trial, even if it grants judgment as a matter of law.
The standard for granting a motion for a new trial is less demanding than the standard for granting a motion for judgment as a matter of law. A new trial may be granted "to all or any of the parties and on all or part of the issues . . . in an action where there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a). In considering a motion for a new trial, the court must "view all the evidence and inferences reasonably drawn therefrom in the light most favorable to the party with the verdict." Marino v. Ballestas, 749 F.2d 162, 167 (3d Cir. 1984) (citations omitted).
Here, plaintiff requests a new trial on the grounds of sufficiency of the evidence, not trial error. A court may grant a new trial on this basis "only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience." Williamson v. Conrail, 926 F.2d 1344, 1353 (3d Cir. 1991). A trial court may not simply substitute its judgment for that of the jury. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.) (in banc), cert. denied, 364 U.S. 835 (1960).
D. Probable Cause to Arrest for Disorderly Conduct
Dunn claimed Harris arrested him without probable cause in violation of the Fourth Amendment. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (a police officer may not arrest a citizen except upon probable cause.) An officer has probable cause to arrest "when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person arrested." Id. at 483.
1. Motion for Judgment as a Matter of Law on Probable Cause
To determine if Dunn should be granted judgment as a matter of law, the court must determine whether, based on the evidence presented at trial, a reasonable jury could have concluded Harris had probable cause to arrest Dunn for disorderly conduct.
The Pennsylvania law against disorderly conduct states:
A person is guilty of disorderly conduct, if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
18 Pa. Cons. Stat. § 5503 (1999). "The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult or disorder." Commonwealth v. Greene, 189 A.2d 141, 144 (Pa. 1963). It "embraces activity which disturbs the peace and dignity of a community." Id.
An officer may arrest a person for disorderly conduct only if the person's behavior and attendant circumstances generate the "type of spark the statute so plainly seeks to extinguish before it becomes a flame."Commonwealth v. DeLuca, 597 A.2d 1121, 1123 (Pa. 1991). In determining whether a person's behavior is inflammatory, the medium — all of the surrounding circumstances — must be considered. See id.
Harris stated Dunn was loud and abusive. See, e.g., Trial Transcript, Vol. III, at 42. Dunn may have yelled angrily at Harris, but that behavior alone could not provide Harris with probable cause to arrest. "While noise may break tranquility, upset rest, destroy sleep and fracture serenity, it does not of itself break the public peace."Greene, 189 A.2d at 144. Unless the words are threatening and the circumstances present a risk of violence, being loud, verbally abusive and obnoxious, even to a police officer, does give an officer probable cause to arrest for disorderly conduct. See Commonwealth v. Hock, 728 A.2d 943, 946-47 (Pa. 1999); Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa. 1980). So, "[i]f [Dunn] was not threatening [Harris's] safety, but was merely being verbally obnoxious and uncooperative, [Harris] had no right to seize him." Vasquez v. Salisbury Township Police Dept., 1999 U.S. Dist. LEXIS 12823, *26-27 (E.D. Pa. 1999) (O'Neill, J.) (citations omitted) ("A police officer may not detain or arrest someone simply for being obnoxious or uncooperative, without more.")
The behavior that led Harris to become suspicious and annoyed at Dunn was his refusal to answer questions. But evasiveness cannot provide probable cause to arrest; an officer may not arrest a citizen for refusing to answer questions. See id. ( citing Karnes v. Skrutski, 62 F.3d 485, 492-93 (3d Cir. 1995)).
Harris testified that not only was Dunn loud and refusing to answer questions, but Dunn gestured at him. A gesture directed at a police officer is not probable cause to arrest for disorderly conduct unless the gesture is obscene, as that term is used in First Amendment jurisprudence, or threatening. See Brockway v. Shepherd, 942 F. Supp. 1012, 1015 (M.D. Pa. 1996). Harris stated that Dunn was "forming his finger in the shape of what I believed to be a gun and making a clicking sound." Trial Tr., Vol. III, at 42. He also claimed on cross-examination that while making this gesture Dunn mumbled threats like "I am going to get you" and "I am going to fix you." See id. at 90.
Harris testified that he thought Dart and Premo could see the gesture, and believed that it was creating an "air of alarm" in them. See id. at 91. Harris was not sure if they believed the gesture was intended for them. See id.
Taking Harris' testimony as true, Dunn's behavior in making a gun gesture and mumbling "I'm going to get you" is objectively threatening. A reasonable officer could conclude that Dunn was violating the law against disorderly conduct by making a menacing gesture and mumbling threats in a public space. The court cannot find as a matter of law that Harris, if his testimony is credited, had no probable cause to arrest Dunn.
Plaintiff correctly points out that Harris admitted he did not believe Dunn posed a threat to him, Dart or Premo. See id. at 42 92. But this admission does not warrant the court entering judgment against Harris for false arrest. Harris, subjective beliefs are not relevant to determining whether it was appropriate to arrest Dunn for disorderly conduct; the issue is whether the facts known to Harris would permit a reasonable person to conclude Dunn was engaging in threatening behavior likely to cause public distress.
2. Motion for a New Trial on Probable Cause
Although Harris testified that Dunn acted threateningly, the testimony of every other witness who saw or heard the events supports the conclusion that Harris did not have probable cause to arrest Dunn. For example, Premo testified that Dunn was not initially rude or loud.Premo Dep., at 15-16. According to Premo, it was Harris who aggravated the situation by becoming loud and demanding, and using derogatory terms. See id. He testified that Dunn did nothing to provoke Harris, nor did Dunn appear to be "looking for a fight." Id. at 18.
The parties agree that Premo was present during the entire confrontation between Dunn and Harris, and Premo testified that he was watching them throughout his time in the police station. See id. Premo was the only person present for the entire incident who was not a party to this litigation.
Premo did not testify live at the trial; an edited video tape of his deposition was played for the jury. The court will cite to the transcript of that deposition: the cited portions were played for the jury.
Premo also testified that Dunn never gestured at or threatened Harris.See id. He summarized his view of the incident by stating he was "very surprised [at] the officer's, you know, physical reaction to Mr. Dunn's bad answers to his questions." Id. at 26.
Dart, the passenger in Premo's car, did not see the entire exchange between Dunn and Harris. She initially returned to the car after the accident to listen to a hockey game on the radio. Trial Tr., Vol. II, at 86. She entered the station about a half an hour later to inquire about the delay. See id.
Dart testified that, although Dunn was not behaving as courteously as he had just after the accident, she did not recall him yelling, using profanity, or acting threateningly. See id. at 88-89. The only threatening comments she recalled were made by Harris. She testified that Harris said he would "do to [Dunn] what they did to Rodney King" and he would "show [Dunn] a stick." Id. at 91. She testified she "never felt Mr. Dunn was a threat to me or Mr. Premo," and "never felt he was a threat to any of the officers." Id. at 97.
Officer Gowder testified that Dunn was "in a rage" and shouting when he entered the station. Trial Tr., Vol II., at 126; 129-30 (Gowder, direct). But Gowder also stated he could not recall Dunn using profanity or gesturing at Harris. See id. at 150. He did not recall the substance of what was said, except that Dunn said "some pretty nasty things." Id.
Officer Ford similarly testified that after Dunn entered the station, an argument ensued between Dunn and Harris. Trial Tr., Vol. II, at 202-03 (Ford, direct). He recalled the argument as "[j]ust fast, loud talking."Id. at 203.
As described by these other witnesses, Dunn was, at most, loud and evasive in response to Harris' questions. Nobody but Harris testified Dunn did or said anything threatening.
Even portions of Harris' testimony suggest that he rather than Dunn was the aggressor, and that Dunn's behavior was not likely to cause a breach of the peace or threaten the public. Harris testified that the confrontation escalated only because he became annoyed and told Dunn "to stop acting like a faggot, and give me the information I need." Trial Tr., Vol. III. at 69. Harris admitted that when he called Dunn a faggot, he had lost a "little of [his] professionalism." Id. at 88. Dunn raised his voice in response to the name-calling, so Harris also began to shout. See id. at 68.
Eventually Harris became so annoyed at Dunn's continued nonresponsiveness that he "leaped over the desk." See id. at 93. According to him, "[i]t was a point where I had it, that was it . . . let me get over here, tell this man he is under arrest, take him and put him in the cell block." See id. at 94. Harris admitted he was "emotionally charged," see id., and that his behavior was not warranted by the circumstances. See id. at 93.
Harris testified that Dunn never threatened him physically. See id. at 94. Nor did he believe Dunn was a threat to Premo or Dart. See id. While insufficient to permit this court to grant judgment as a matter of law in favor of Dunn, a part of Harris' own testimony supports the conclusion that he lacked probable cause to arrest Dunn for disorderly conduct.
The clear weight of the evidence tends to show that Harris did not have probable cause to arrest Dunn for disorderly conduct. To permit the jury's verdict on arrest with probable cause to stand would be a miscarriage of justice. Plaintiff will be granted a new trial on his claim under 42 U.S.C. § 1983 against Harris for arrest without probable cause.
D. Use of Excessive Force during Dunn's Arrest
Dunn claims that Harris used excessive force during the arrest in violation of the Fourth Amendment's protection from unreasonable seizures of the person. U.S. Const., amend. IV. Police officers are privileged to commit a battery in the course of a lawful arrest, but use of excessive force negates that privilege. See Edwards v. Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988). Force is excessive if it is unreasonable. Graham v. Connor, 490 U.S. 386, 395-96 (1989).
The standard of reasonableness is objective, see Graham, 490 U.S. at 388, but "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 599 (1979). The appropriate use of force cannot be viewed in isolation, but must be viewed in the context of all the circumstances leading up to the arrest and detention. See Bauer v. Norris, 713 F.2d 408, 412-13 (8th Cir. 1983). The question is whether the level of force was objectively reasonable under the circumstances.Graham, 490 U.S. at 396.
Determining the reasonableness of the force used requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest of attempting to evade arrest by flight."Graham, 490 U.S. at 396. Under certain circumstances, any use of force will be unreasonable. See Bauer, 713 F.2d at 412-13.
1. Judgment as a Matter of Law on Excessive Force
Harris claims Dunn gestured at him with his fingers in the shape of a gun and mumbled "I'll fix you." In response, Harris leaped over the desk, landed in front of Dunn, grabbed Dunn in the shoulder area and attempted to turn him around. Trial Tr., Vol. III. at 43. Harris admitted he may have pinned Dunn against the wall. See id. at 73. Thereafter, because Dunn's feet were tangled in a chair or because Harris released him, Dunn fell to the floor and other officers intervened. They handcuffed Dunn and took him to an area by the holding cells, where he was detained until Harris completed the report and dismissed Dart and Premo.
Taken in the light most favorable to Harris, the evidence was minimally sufficient to permit a jury to conclude that the force used by Harris was reasonable under the circumstances. Dunn's gesturing at Harris, pointing at him with his fingers in the shape of a gun, and his contemporaneous statement "I'm gonna fix you," might reasonably have been viewed by an officer as a threat of physical force. Threatened force justifies an officer to respond with a reasonable amount of force to subdue and prevent any threat of physical harm to himself and/or the nearby citizens. See Agree v. Hickman, 490 F.2d 210 (8th Cir. 1974) (where arrestee squared off, doubled up his fists toward the officers, and stated he was in pretty good shape, the officer used reasonable force when he punched the arrestee in the stomach and slapped him a few times.) Grabbing Dunn, turning him around, and pushing him against a wall to arrest him, is not severe force and might have appeared necessary to a reasonable officer in a similar circumstance. See id.
2. A New Trial on Excessive Force
The testimony of the other witnesses at trial showed that Harris used greater force than he recalled. Premo testified that "[Harris] jumped over the desk and grabbed Mr. Dunn and threw him up against the wall . . . shoving his forearm underneath his throat." Dart recalls Dunn stepping back in shock from Harris' leap over the desk, getting his foot tangled in a chair, and falling. She then recalls that Harris somehow got "on top of him, . . . holding him down." Even if Dunn had verbally threatened Harris, the force described by these other witnesses would have been unreasonable and excessive in the circumstances; Harris admitted that Dunn did not resist arrest.
The other persons present also testified that they did not hear Dunn threaten Harris, or see him gesture threateningly toward Harris, and these were the only behaviors that justified any use of force. See Bauer, 713 F.2d at 412-13. Both Premo and Dart characterized Harris as the aggressor. See supra § I(D)(2). Dunn was arrested for the offense of disorderly conduct, which is not a severe crime. Harris was significantly larger and stronger than Dunn, and at the time of the incident, Harris was behind a tall desk, out of Dunn's grasp.
The verbal joust between Dunn and Harris had gone on for an extended period of time prior to the arrest. Several witnesses testified that during that time, Dunn had complied with the request to sit down. Harris had no reason to believe Dunn would not comply with his request to stand still for an arrest, and there is no evidence that Harris even attempted to arrest Dunn peaceably or through mere threat of force before physically engaging him.
The incident occurred in a police station, not a dangerous location, in the early evening. Other officers were in the immediate vicinity and could have provided support, yet Harris did not request support for the arrest. Harris admitted Dunn did not resist arrest or attempt to exert force in any way that would have justified a further use of force. See Trial Tr., Vol. III. at 97.
There is also testimony suggesting that Harris used force against Dunn, not for the lawful purpose of protecting himself from the threat of harm, but for an unlawful purpose of venting his frustration because Dunn refused to answer his questions. Harris testified that after Dunn made the gun gesture and mumbled threats, Harris warned him to stop. Trial Tr. III, at 42. Harris testified that, despite the warning, "Dunn refused to stop, refused to answer the questions, continued with his loud behavior." Id. It was then that he jumped over the desk. See id. He also repeatedly testified that he did not feel threatened by Dunn. See id. at 94. He summed up his reasons for leaping over the desk and physically confronting Dunn by stating, "[i]t was at a point where I had it, that was it." Id. at 93.
Additionally, the court will grant a new trial on the issue of probable cause because no other witness recalled Dunn ever threatening or gesturing at Harris. If that evidence is not believed at re-trial, Harris did not have probable cause to arrest Dunn. If Harris lacked probable cause to arrest, any force used was unreasonable. See Atkins v. New York City, 143 F.3d 100, 103 (2d Cir. 1998) ("[T]he force used in connection with the arrest was unlawful because the arrest was found to be unlawful.").
The clear weight of the evidence suggests Harris used excessive force in the circumstances. To permit the jury's verdict on excessive force to stand would be a miscarriage of justice. Plaintiff will be granted a new trial on his excessive force claim.
II. MUNICIPAL LIABILITY — THE CITY OF PITTSBURGH
Judge Lee initially granted Summary Judgment in favor of the City on September 12, 1995. Dunn filed a series of appeals, and a motion for reconsideration. After the appeal was dismissed, Judge Lee vacated the original order and re-entertained the issue of Summary Judgment. He then granted Summary Judgment again in favor of the City by Order dated February 6, 1997. Another motion for reconsideration was denied by Judge Lee by Order dated March 7, 1997. Throughout these proceedings, Dunn was acting pro se.
This action was transferred from the docket of Judge Lee to the docket of this court in June, 1998 for settlement or trial. Counsel entered an appearance on behalf of Dunn in October, 1998, and filed a new motion to reconsider the Order granting Summary Judgment in favor of the City on March 30, 1999. Because trial was then imminent, the court deferred judgment on the motion.
Judge Lee granted the City's Motion for Summary Judgment after a review of a Magistrate Judge Caiazza's Report Recommendation ("RR") and Dunn's pro se objections. The Report and Recommendation stated, in relevant part:
Dunn's Amended Complaint essentially alleges that by its customs and policies, the City failed to train and discipline its officers. However, a review of the pleadings and discovery materials in this record do not establish that there is a genuine issue if material fact regarding the alleged deprivation of Dunn's constitutional rights. Summarily stated, Dunn has not provided any factual support for his allegations that the City had an official policy or an unofficial custom which promoted, or condoned indifference to his civil rights. Therefore, the City's Motion for Summary Judgment should be granted.
Dunn's objections to the RR were based on three documents (including a summary of Harris's disciplinary history). Judge Lee adopted the RR without discussion. Plaintiff then filed a motion Judge Lee construed as one for reconsideration, attaching: (1) a summary of Harris' disciplinary history (two sustained complaints of excessive force and one sustained complaint of unbecoming conduct in eight years); (2) the report of Dunn's arrest; and (3) the disciplinary review of the incident giving rise to this action (that found Harris had used excessive force against Dunn). Judge Lee denied this motion without opinion.
Through briefing written by Dunn's counsel, the circumstances of Harris' disciplinary history were fleshed out. The City received its first complaint against Harris in 1984. It received six complaints against Harris in the four year period culminating in Dunn's arrest: (1) on June 1, 1988, for hitting a citizen on the knee with a blackjack; (2) on July 20, 1988, for verbal abuse of citizens; (3) on November 16, 1988, for improperly handling property; (4) on June 5, 1990, for using excessive force on a citizen he later arrested for summary offenses; (5) on November 14, 1991, for verbal abuse; and (6) for the conduct relating to Dunn's arrest. Of these complaints, the 3rd, 4th, and 6th were sustained by the City, and the rest were either "not sustained" or dismissed.
Under Monell v. Dep't of Social Services of New York, the City can be liable for unconstitutional conduct by a city official only if that official was acting pursuant to a policy, custom or practice of the municipality. 436 U.S. 658, 690-91 (1978). The practice need not be officially endorsed or written to establish liability; custom or practice may be established by proving that the course of conduct is so "well-settled and permanent" as to have the force of law. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations omitted).
In addition, plaintiff must produce evidence linking the practice or custom and the particular constitutional violation alleged. See Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). "Plaintiff must simply establish a municipal custom coupled with causation — i.e., that policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to [his] injury." Bielevicz, 915 F.2d at 851.
In Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) the Court of Appeals reversed a district court grant of judgment in favor of the City as a matter of law where a number of citizen complaints against the same officer were evidence that the City had authorized the use of excessive force by failing to discipline officers.
Beck is particularly relevant because the Court analyzed the disciplinary procedures of the City of Pittsburgh in the early 1990s. InBeck, several complaints against police officers were made to the City's Office of Professional Standards ("OPS"), but were dismissed. The City, relying on its investigation of these complaints, found them "not sustained". As the Court held:
A jury readily could have found the [OPS] was nothing more than a facade to cover the violent behavioral patterns of police officers under investigation, to protect them from disciplinary action, and thereby perpetuate the City's custom of acquiescing in the excessive use of force by its police officers. Beck, 89 F.3d at 974.
The Court further held that a reasonable jury could have found that the OPS was "structured to curtail disciplinary action. Id. Even though the OPS had "not sustained" many of the complaints against the defendant, the Court found that five complaints in five years was sufficient to put the City on notice of an officer's propensity to use excessive force.
There were five complaints against Harris in the four years preceding the incident at issue in this action; four involved verbal or physical abuse, but only one was sustained. The facts on which the Court of Appeals reversed in Beck and the facts of this action are remarkably similar.
A motion to reconsider should be granted only if: 1) new evidence, not previously available, becomes available; 2) there has been an intervening change in controlling law; or 3) a clear error of law or manifest injustice must be corrected. See NL Indus. v. Commercial Union Ins. Co., 65 F.3d 314, 324 n. 8 (3d Cir. 1995); Jubilee v. Horn, 959 F. Supp. 276, 278 (E.D. Pa. 1997). Comity counsels against overturning the Summary Judgment decision made by a different judge of the court. See Fagan v. City of Vineland, 22 F.3d 1283, 1290 (3d Cir. 1994) ("[A]s a matter of comity a successor judge should not lightly overturn decisions of his [or her] predecessors in a given case.").
Dunn did not provide Judge Lee with specific evidence of all the complaints lodged against Harris in the years preceding Dunn's arrest: he provided a summary history of those complaints. Dunn alleges he only obtained evidence of the complaints through discovery after Judge Lee had dismissed the City as a defendant.
In its latest brief, the City, for the first time, alleges that Dunn possessed "all of the records pertaining to complaints made against Harris" by 1994. Resolving this factual dispute is not necessary.
Dunn's argues the specific evidence relevant to the City's Summary Judgment Motion was "unavailable" to him at the time because he was thenpro se. Neither party has cited authority on the issue of "unavailable" evidence in this context. The standard is whether Dunn exercised sufficient "due diligence" in attempting discovery so that his failure to produce the evidence in question should be excused. See Wright, Miller, Kane, 11 Federal Practice Procedure 2d § 2810.1 (1995) ("The Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.") (citations omitted); United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (newly discovered evidence is that which is "truly newly discovered or . . . could not have been found by due diligence.")
Pro se plaintiffs rarely obtain counsel after Summary Judgment: relevant authority is sparse. In Ford v. Troyer, 25 F. Supp.2d 723 (E.D. La. 1998), plaintiff moved for reconsideration of Summary Judgment on the ground that as a pro se litigant, he did not know he was required to submit evidence in opposition to defendant's motion. The court granted the motion because plaintiff's "failure to introduce [the] evidence on time was due to his pro se status and understandable lack of knowledge about federal procedure." Id. at 726. In Ford, plaintiff did not fail to produce all relevant evidence, but failed to produce any evidence at all.
Waul v. Coughlin, 177 F.R.D. 173 (S.D.N.Y. 1997) is also analogous, but distinguishable. In denying a motion for a new trial, the court recognized that pro se litigants may be relieved of some of the obligations of discovery, but held that the plaintiff had not exercised due diligence in discovering relevant evidence. In contrast to Waul, Dunn was never represented by counsel before Summary Judgment was granted.
However, Dunn has offered no evidence of efforts he made to obtain the evidence at issue, but attributes his failure only to lack of counsel. To grant Dunn his motion based on his pro se status, without more, would go too far. Even pro se plaintiffs have an obligation to discover and submit relevant evidence. Uncounseled litigants requiring assistance may turn to the courts, see Waul 177 F.R.D. at 178; being pro se cannot excuse the requirement that a litigant conduct discovery with due diligence. Discoverable evidence was "available" to Dunn before Summary Judgment, and was not "newly discovered" on reconsideration.
Judge Lee issued his Order granting Summary Judgment on February 6, 1997. Beck v. Pittsburgh had been decided on July 22, 1996. Although Dunn failed to bring Beck to Judge Lee's attention, Beck does not constitute a sufficient reason, standing alone, to reconsider Judge Lee's decision.
Given the evidence submitted with Dunn's opposition to Summary Judgment, and his failure to provide the court with the authority ofBeck, the grant of Summary Judgment was not a clear error of law as applied to the facts as the court then knew them. However, in light of the grant of a new trial, and the evidence now available, manifest injustice would result from allowing the Summary Judgment to stand; it will be reconsidered and reversed.
The City's original Motion for Summary Judgment, filed in 1995, relied on: (1) Dunn's failure to produce evidence of other misconduct by Harris; and (2) the existence of disciplinary procedures by the OPS. The City did not bring the governing Court of Appeals decision in Beck to Judge Lee's attention. The City, unlike Dunn, was represented by counsel, with a duty to inform the court of relevant controlling authority. See Penn. Rule. Prof. Cond. 3.3 ("A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel"). This duty takes on particular force when the opposing party is pro se.
Had Judge Lee been aware of Beck when deciding the Motion for Summary Judgment, and had he been presented with the evidence this court has now reviewed, it is clear that he would have allowed Dunn's claims against the City to go to a jury. While Dunn's difficulty conducting discovery as a pro se litigant is insufficient to overturn Summary Judgment, it is a factor in determining if the Summary Judgment is manifestly unjust. Dunn's claims against Pittsburgh should be adjudicated on the merits. This action presents the rare circumstance where comity does not compel adhering to the decision of a different district court judge: the Motion to Reconsider has merit. The grant of Summary Judgment to the City will be reversed, it will be reinstated as a defendant in this action.
The City, responding to a Motion to Compel in 1994, admitted that it had delayed providing Dunn with relevant discovery due to "unforseen difficulties in retrieving the information requested."
The City claims that it will be prejudiced by a trial because of the passage of time, by its alleged inability to participate in discovery, and by Dunn's death. Trial in this matter is currently scheduled for June, 2002, four months from now. The City will have the opportunity to conduct additional discovery. The possibility that the City has been prejudiced by its inability to cross-examine Dunn and other witnesses, despite its identity of interest with Harris, is an issue the City may address in pre-trial motions.
CONCLUSION
The jury's verdict in favor of the defendant, police officer Thomas Harris, on the claims of arrest without probable cause and excessive force, is contrary to the great weight of the evidence and must be overturned to prevent grave injustice. Plaintiff is granted a new trial on these claims.
Summary Judgment against the City is reconsidered and reversed in light of: (1) the City's failure to bring the controlling authority of Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) to the attention of the court; (2) the evidence submitted after plaintiff retained counsel; and (3) the application of Beck to this evidence. The City of Pittsburgh is reinstated as a defendant.
ORDER
AND NOW, this 13th day of March, 2002, for the reasons stated in the foregoing memorandum, it is ORDERED that:
1. Plaintiff's Motion for Judgment as a Matter of Law, or for New Trial (#143) is GRANTED IN PART AND DENIED IN PART.
a. Plaintiff's Motion for Judgment as a Matter of Law is DENIED.
b. Plaintiff's Motion for a New Trial is GRANTED.
2. Plaintiff's Motion to Reconsider Summary Judgment (#129) is GRANTED. The City of Pittsburgh is REINSTATED AS A DEFENDANT IN THIS ACTION.