Opinion
CIVIL ACTION NO. 99-4678
February 12, 2004
Memorandum and Order
Plaintiff Vernard Pryer sued Stephen Edwards and the City of Philadelphia ("the City") through § 1983 for violating his civil rights and for state law violations that allegedly ensued when defendant Edwards, a police officer for the City of Philadelphia, shot Pryer in the early morning of September 19, 1998. At the time of the shooting, Edwards was off duty, and Pryer had just violated a restraining order that forbid him from visiting his former girlfriend, Tametria Cox, who was then dating Edwards.
Plaintiff brought Count I against Edwards for an illegal search and seizure; Count II against Edwards for violation of his Fourth Amendment rights for excessive use of force; Count III against Edwards for false arrest; Count IV against Edwards for false imprisonment; Count V against Edwards for assault and battery; Count VI against Edwards for intentional infliction of emotional distress; Count VII against Edwards (and Count VIII against five officers) for harassment which constitutes a violation of plaintiff's civil rights under the Fourth and Fourteenth Amendments of the United States Constitution; and Count IX against the City of Philadelphia for a policy or custom of failing to train and supervise its police officers.
Currently pending before the court is the City of Philadelphia's motion for summary judgment on Count IX, wherein plaintiff claims that the City was negligent and grossly negligent in its policy or custom of training and supervising its police officers. See Doc. No. 28. The parties dispute whether Edwards was acting under the color of state law at the time and whether Edwards' acts were the result of the City's negligence and its policies, customs or practices. Plaintiff contends that Edwards acted under the color of the law and that the City was responsible. Defendant argues that Edwards' actions were purely personal. For the reasons explained below, I will grant defendant's motion.
Count IX is the only count brought against the City of Philadelphia.
FACTUAL BACKGROUND
The following facts are undisputed. In the early morning of September 19, 1998, defendant Stephen Edwards, a police officer for the City of Philadelphia, shot the plaintiff, Vernard Pryer. Compl. ¶ 18; Def.'s Memo, at 2 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2). Around the time of the shooting, Edwards was dating Pryer's former girlfriend, Tametria Cox. Compl. ¶ 14; Def.'s Memo, at 1 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 3-4, 5). Just before the shooting, Pryer had violated a restraining order by appearing at Cox's house. Compl. ¶ 13; Def.'s Memo, at 2 (citing Exhib. F, Pryer Trial Testimony, at 25-26); Pl.'s Memo, in Opp. to Def.'s Mot. at 3. Edwards was aware of the restraining order served upon the plaintiff. Pl.'s Memo, at 5; Def.'s Memo, at 2 (citing Exhib. E, Pryer Deposition Trans., at 81-82). Pryer knew Edwards was a police officer. Compl. ¶ 12; Def.'s Memo, at 9. Prior to the shooting, the men had several contentious encounters in the presence of Cox. Def.'s Memo, at 1 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 3-4, 5, 7; Exhib. F, Pryer Trial Testimony, at 38-39, 83, 90; Exhib. E, Pryer Deposition Trans., at 61-64, 81-82, 112).
The order prohibited Pryer from visiting or contacting Ms. Cox. Pl.'s Memo, at 5.
Edwards first encountered plaintiff at Cox's home where he was visiting. Def.'s Memo. at 1 (citing Exhib. E, Pryer Deposition Trans., at 61-64). In February 1998, plaintiff visited Cox's home while Edwards was there and Edwards wanted to fight. Def.'s Memo. at 1 (citing Police Investigation Interview of Pryer, Oct. 15, 1998, at 7). In July 1998, plaintiff was looking for Cox and learned she was at Edwards' residence. Plaintiff went to Edwards' street and spoke with his neighbors, knocked on doors, and eventually Cox came out to speak with plaintiff. Def.'s Memo. at 1 (citing Exhib. F, Pryer's Trial Testimony, at 38-39). Edwards charged plaintiff with vandalizing his car that day. Def.'s Memo. at 2 (citing Exhib. E, Pryer Deposition Trans., at 112).
On September 19, at the time of the incident, Edwards was off duty. Pl's Memo, at 5. He was armed and carried his badge. Pl.'s Memo, at 6; Def.'s Memo. at 2, 3. Edwards drove his own car and wore civilian clothing. Compl. ¶ 17; Def.'s Memo. at 2; Pl.'s Memo, at 5. Prior to the incident, Edwards was driving in the vicinity of Cox's house when he saw Pryer, who was also driving. Pl's Memo. at 3; Def.'s Memo. at 2.
The witness testimonies present different accounts as to what happened next, but the parties agree that at some point after Edwards saw Pryer, Edwards pulled up alongside Pryer and showed his badge. Compl. ¶ 17; Def.'s Memo. at 2 (citing Exhib. C, Police Investigation Interview of Pryer, Apr. 27, 1999, at 1); Pl.'s Memo. at 3-4 (citing Pryer Deposition Trans. at 57, 97-98; Pryer's Trial Testimony at 26-27). Edwards veered his car toward plaintiff, forcing plaintiff to stop his car. Def.'s Memo. at 2 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2); Pl's Memo. at 3 (citing Pryer Deposition Trans. at 57, 97-98). Both men got out of their cars, and a fistfight ensued before Edwards drew his gun. Def.'s Memo. at 2 (citing Exhib. F, Pryer's Trial Testimony at 28-29); Pl's Memo. at 3 (citing Pryer Deposition Trans. at 99-103). As Pryer got out of his car he heard Edwards yelling, "I'm tired of you doing this and that." Def.'s Memo. at 2 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2). Pryer also recalls that Edwards was yelling before he started throwing punches at Pryer. Exhib. C, Police Investigation Interview of Pryer, Apr. 27, 1999, at 2; Exhib. E, Pryer Deposition Trans. at 128. According to Pryer, Edwards said "this is enough of this" as he pulled out his gun. Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2. After Edwards pulled out his gun, Pryer grabbed Edwards and the two men began to wrestle. Id. According to Pryer, Edwards indicated to Pryer that when he got free he was going to shoot Pryer in the head. Id. In the midst of struggle, Edwards fired several shots at Pryer, the second of which hit Pryer in his right knee. Compl. ¶ 18; Def.'s Memo, at 2; Pl's Memo. at 3. As Pryer began to run away, Edwards fired shots and hit Pryer in his right side, three times in the stomach. Def.'s Memo. at 3 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2); Pl's Memo. at 3 (citing Pryer Deposition Trans. at 99-104).
The parties present different accounts of the events that transpired next. Pryer testified that he heard Edwards call for officer assistance. Compl. ¶ 20; Pl.'s Memo. at 3, 4 (citing Pryer Deposition Trans. at 104-105; Pryer Trial Testimony at 30-31). According to Pryer, when the first officer arrived on the scene, Edwards also identified himself as a police officer and said that Pryer "tried to rob him." Pl's Memo. at 7 (citing Pryer Trial Testimony at 134); Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 3. Edwards does not say that he called for assistance but states that "when uniformed officers arrived on the scene," he told them that Pryer forced Edwards' car off the road, attacked him and attempted to take his gun. Def.'s Memo at 3.
Following a grand jury investigation, Edwards was criminally charged with assaulting plaintiff. After a jury trial, Edwards was acquitted.
STANDARD OF REVIEW
Either party to a lawsuit may file a motion for summary judgment, and it will be granted only "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 judgment as a matter of law." Fed.R.Civ.Pro. 56(c). The moving party bears the initial burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, Ltd. 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). The non-movant must present concrete evidence supporting each essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Furthermore, "[a] 11 justifiable inferences are to be drawn in [the non-movant's] favor." Id. "Summary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). The non-movant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
DISCUSSION
I. Whether Edwards was acting under color of state lawThe City first contends that Edwards was not acting in his official capacity at the time he shot Pryer. The City argues that Fryer's Section 1983 claim against the City cannot survive its motion for summary judgment because the alleged deprivation was not committed by a person acting under color of state law; i.e., Edwards was not exercising his official authority at the time of the shooting. Def.'s Memo in Support of Motion for Partial Summ. J. at 7 et seq. The City contends that officer Edwards' actions were purely personal and cannot be characterized as "actions under color of law." Id. at 8-9.
In order to establish a claim under 42 U.S.C. § 1983, evidence must demonstrate 1) that a violation of a right secured by the Constitution and the laws of the United States occurred and 2) that the alleged deprivation was committed by a person acting under color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) (emphasis added). "[U]nder `color' of law means under `pretense' of law." Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion). "If an individual is possessed of state authority and purports to act under that authority, his action is state action." Griffin v. Maryland, 378 U.S. 130, 135 (1964). An officer purports to act under state authority, where the "[m]isuse of power, possessed by virtue of state law is made possible only because the wrongdoer is clothed with the authority of state law." U.S. v. Classic et al, 313 U.S. 299, 326 (1941); Gillard v. Schmidt, 579 F.2d 825, 829 (3d Cir. 1978) (emphasis added).
The Third Circuit has found that the same rule applies to off-duty police officers such that they also act under color of state law for purposes of a Section 1983 claim when they purport to exercise official authority. Barna v. City of Perth Amboy et al., 42 F.3d 809, 816 (3d Cir. 1994). Officers act under color of law if they depend upon the "cloak of the state's authority" as a means to commit the alleged acts, and if that authority enables the officer to do what he did. Barna, 42 F.3d at 815-16, 818; Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968).
A police officer's "purely private acts which are not furthered by any actual or purported state authority are not acts under color of state law." Barna, 42 F.3d at 817. An off-duty officer's motivation for action is one factor that courts consider when determining whether an officer's actions were purely personal. See, e.g., Barna, 42 F.3d at 817; Strohm, 1994 WL 315560 at *2-3; Halwani, 2000 WL 968219 at *3; and Mimms-Huntley v. City of Philadelphia, 1993 WL 428946 at *4. However, even if actions are motivated by personal animosity, this fact "does not and cannot place an officer or his acts outside the scope of Section 1983 if he vented his ill feeling towards [the victim] . . . all under color of a policeman's badge." Basista v. Weir, 340 F.2d 74, 80-81 (3d Cir. 1965). Thus, the "acts of officers in the ambit of their personal pursuits are plainly excluded [whereas] [a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws, 325 U.S. at 111; Mark v. Borough of Hatboro, 51 F.3d at 1151.
To determine if an officer was acting in his or her official capacity, courts ask whether the nature of the actions performed by the officer is consistent with actions taken by a police officer. See Griffin, 378 U.S. 135; Barna, 42 F.3d at 816; and Nonnemaker, 1999 WL 387084 at *3. An off-duty officer's actions are purely private when he or she becomes involved in a dispute "without any evidence of police actions calculated to preserve the peace, protect life and property, arrest violators of the law or prevent crime." Nonnemaker v. Ransom, 1999 WL 387084 at *3 (E.D. Pa. May 26, 1999). Finding that an off-duty officer acted under color of law generally requires several indicia of official action. Barna, 42 F.3d at 817. It is not enough to consider simply whether or not the police officer was wearing a uniform or whether the officer was on or off duty at the time of the incident. Halwani v. Galli, 2000 WL 968219 at *2 (E.D. Pa. 2000). Furthermore, the use of a state-issued weapon in the pursuit of private activities, without more, is not dispositive. Barna, 42 F.3d at 817. Manifestations of police authority may include flashing a police badge, identifying oneself as a police officer, indicating that the officer is on official police business, attempting to make an arrest or placing an individual under arrest, or intervening in a dispute involving others pursuant to a duty imposed by police department regulations. Id. at 816. The Third Circuit has noted that officers do not act under color of state law when they do not "invoke . . . police authority, during the initial phase of the altercation." Id. at 818. The Third Circuit looks to all of the acts of the officer, and no one act in particular, in context, to determine whether an officer was acting in his or her official capacity and whether the officer invoked police authority. Id.
See, e.g., Smith v. City of Philadelphia, 2002 U.S. Dist. LEXIS 26529 at *10 (E.D. Pa. Sept. 23, 2002) (officer who attacked a man who he knew was romantically involved with his girlfriend did not act under color of law where victim did not know his attacker was an officer and where officer did not identify himself as an officer, utilize his employment as a law enforcement officer to exercise authority, or direct complknce with the law); Strohm v. Shanahan, 1994 WL 315560 ay *2-3 (E.D. Pa. Jun. 30, 1994) (off-duty officer did not exercise state authority when he allegedly grabbed plaintiff, struck him from behind, and then threatened to beat and arrest him because witnesses to the incident regarded the defendant officer as an intoxicated patron engaged in a personal dispute rather than as a police officer exercising state authority); Hunte v. Darby Borough, 897 F. Supp. 839, 841 (E.D. Pa. 1995) (off-duty officer who allegedly assaulted two individuals did not act under color of law because he was not in uniform, did not display a police badge, did not identify himself as a police officer and did not attempt arrest); Mimms-Huntley, 1993 WL 428946 (E.D.Pa. Oct. 13, 1993) (officer's acts were purely personal and were not acts that the officer could not have committed but for the cloak of state authority); Halwani v. Galli, 2000 WL 968219 at *3 (E.D. Pa. July 13, 2000) (on-duty, uniformed police officer did not act under color of law because the altercation arose out of a personal dispute and the officer did not arrest or threaten to arrest the plaintiff).
Yet, "mere knowledge that an actor is a police officer is not enough to show action under color of state law." Hunte, 897 F. Supp. at 842 (citing Barna). Furthermore, where the underlying nature of the dispute is personal, a prison guard's verbal identification of himself as a prison guard was not sufficient evidence that he purported to act with state authority. Nonnemaker v. Ransom, 1999 U.S. Dist. LEXIS 8108, 1999 WL 387084 at *3-4; Strauss v. Walsh, 2002 U.S. Dist. LEXIS 24717 at *13 (E.D. Pa. Dec. 17 2002) ("[t]hat an individual is known to be a police officer or identifies himself as an off-duty police officer does not convert his private acts into state action") (citing Nonnemaker v. Ransom, 1999 WL 387084 at *3-4).
Examining the facts in their entirety, and considering the past encounters of the men and the events leading up to the shooting, it seems evident that the underlying nature of the incident was in large part personal. The following undisputed facts suggest that the incident was personal in nature and that the shooting had nothing to do with Edwards' position as a police officer. Edwards was off-duty at the time of the shooting. He was wearing plainclothes and was driving his own car. The words the parties exchanged were personal and gave no indication that Edwards was on official business.
Also, leading up to the incident, the men had had several interactions before the shooting such that their relationship could be characterized as volafile. These encounters all took place in the presence of Edwards' girlfriend, Tametria Cox. Cox was Pryer's former girlfriend but was involved with Edwards at the time of the shooting. In February 1998, plaintiff was visiting Cox's home while Edwards was there. Def.'s Memo. at 1 (citing Police Investigation Interview of Pryer, Oct. 15, 1998, at 7). Plaintiff claims that at that time Edwards wanted to fight. Id. In July 1998, plaintiff was looking for Cox and learned she was at Edwards' residence. Plaintiff went to Edwards' street, spoke with his neighbors and knocked on doors, until eventually Cox came out to speak with plaintiff Def.'s Memo. at 1 (citing Exhib. F, Pryer's Trial Testimony, at 38-39). Edwards charged plaintiff with vandalizing his car that day. Def.'s Memo. at 2 (citing Exhib. E, Pryer Deposition Trans., at 112).
Like their confrontations in the past, the encounter on the morning of September 19, 1998, concerned Cox. That morning, Edwards recognized Pryer's car in the area, giving him reason to believe that Pryer had just come from Cox's house. Whether Edwards was acting in his official capacity when he confronted Pryer immediately thereafter is the issue before this court. The nature of Edwards' statements to Pryer and the ensuing fistfight suggest that the incident arose as a personal dispute, as had all of the men's previous interactions, rather than as a matter of police business. As Pryer got out of his car he heard Edwards yelling, "I'm tired of you doing this and that." Def.'s Memo. at 2 (citing Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2). Pryer also heard Edwards say "this is enough of this" when Edwards pulled out his gun after making several ineffective punches at Pryer. Exhib. D, Police Investigation Interview of Pryer, Oct. 15, 1998, at 2. Edwards also stated to Pryer that when he got free he was going to shoot Pryer in the head. Id. Edwards never attempted to arrest Pryer. After the shooting, when other officers arrived on the scene, Edwards gave no indication that he was acting in his official capacity when he shot Pryer. Edwards' statements and actions suggest that his motivation for shooting Pryer was personal.
Yet, the issue before this court is whether plaintiff has presented enough evidence for a reasonable fact-finder to conclude that Edwards acted under color of law by using his position as a police officer to commit the alleged assault. In this regard, plaintiff has presented evidence that Edwards used his police-issued weapon. Most importantly, plaintiff has testified that Edwards flashed his badge and motioned for Pryer to pull over and veered his car in front of the plaintiff's in order to stop him. Pryer also points to his own account of the incident, which shows that he thought Edwards was responding in an official capacity to Pryer's violation of the restraining order. Finally, plaintiff alleges that Edwards called for backup and identified himself as a police officer when other officers arrived on the scene.
Accepting the facts in the light most favorable to the plaintiff, a reasonable fact-finder could conclude that Edwards used his position to further his alleged assault. The fact that Edwards shot Pryer with his police-issued weapon is not by itself dispositive of the issue of whether Edwards' acts were committed under color of state law. Barna, 42 F.3d at 817. "While a police-officer's use of a state-issued weapon in the pursuit of private activities will have `furthered' the § 1983 violation in a literal sense, courts generally require additional indicia of state authority to conclude that the officer acted under color of state law." Id. However, it is also undisputed by the City for purposes of this motion that Edwards flashed his badge when the two men were driving alongside one another. Therefore, it is plausible that a reasonable fact-finder could determine that Edwards, by flashing his badge, using his government-issued weapon to commit an alleged assault, veering his car in front of plaintiff's, taking this action immediately after an admitted violation of the restraining order by Pryer, and calling for back-up as a police officer after the incident, has provided the necessary additional indicia, required by the Third Circuit, to signify that he was acting, or purporting to act, as a state official.
An off-duty police officer can make an arrest in Pennsylvania 24 hours a day. McCafferty Dep. at 66 (Pl's Exhibit 96).
The Supreme Court has indeed recognized the significance of the police officer's badge as an indication that an individual is acting in an official capacity. Griffin v. Maryland, 378 U.S. 130, 135 (1964) (noting as part of the under-color-of-state-law analysis that a park guard "wore a sheriffs badge and consistently identified himself as a deputy sheriff"). The Third Circuit has also stated that manifestations of pretended authority may include placing an individual under arrest, intervening in a dispute pursuant to a duty imposed by police regulations, and flashing a badge. Barna, 42 F.3d 809, 816. The Third Circuit has also noted that identifying oneself as a police officer is the sort of action required to show that an off-duty officer acted under color of state law. Id. at 817. Both the Supreme Court and the Third Circuit have indicated that the appropriate analysis is whether the indicia of authority enabled the officer to commit the alleged act. The Supreme Court has stated that action pursued under color of law is "the misuse of power . . . made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941) (emphasis added). Similarly, the Third Circuit has made clear that when a police officer becomes involved in his own personal disputes, the "officer's purely private acts which are not furthered by any actual or purported state authority are not acts under color of state law." Barna, 42 F.3d at 816-17 (emphasis added). See also Gillard v. Schmidt, 579 F.2d 825, 829 (3d Cir. 1978) (recognizing another instance outside of the law enforcement context in which a member of a school board gained admission into a locked office "only because [he] was clothed with the authority of state law") (emphasis added); Johnson v. Hackett, 284 F. Supp. 993, 937 (E.D. Pa. 1968) (the acts complained of were not under `pretense' of law because they were "not acts these defendants could not have committed but for the cloak of the state's authority") (emphasis added). Thus, the controlling inquiry is not simply whether Edwards flashed his badge, but whether Edwards' private acts were furthered by his purported state authority, i.e., by the flashing of his badge.
The Court also relied on the facts that the individual ordered the petitioners to leave park, arrested them, and instituted prosecutions against them. Id.
Considering state action outside the law enforcement context, the Third Circuit has stated: "[O]ff-duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law." Bonenberger v. Plymouth Township, 132 F.3d 20, 24 (3d Cir. 1997).
In this regard, a reasonable fact-finder might still determine that Edwards was acting in his official capacity. In his deposition, Pryer stated that he intended to pull over because Edwards was a police officer and because of his admitted violation of the restraining order. Pryer stated that Edwards was pulling him over because he "figured it was because [Pryer] was coming from her house or something like that." Pl's Brief at 31; Exhibit 3 at 98-99. Pryer also testified that he did not pull over because he "knew who [Edwards] was and he wanted to stay away from him." Exhibit F, at 27. Both of these statements are ambiguous, suggesting that the incident was personal but also that Edwards may have purported to act in his official capacity. Considering the facts in the light most favorable to the plaintiff, as I must, a reasonable fact-finder could determine that Edwards was acting in his official capacity as a police officer, either in response to the violation of the restraining order or for some other violation.
Drawing all justifiable inferences in plaintiff's favor because he is the non-moving party, I find that the undisputed presence of manifestations of police authority (flashing a police badge and using a state-issued weapon) could suggest to a reasonable fact-finder that Edwards purported to act under state authority. In addition, Pryer knew Edwards was a police officer, and Edwards knew that Cox had a restraining order against Pryer. The parties agree that plaintiff violated the restraining order. Edwards also identified himself as a police officer when other officers arrived on the scene. The parties disagree about the inferences that can be drawn from the facts; however, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). Pryer's inferences, although perhaps seriously undermined by the personal nature of the confrontation, are at least reasonable.
II. Whether Edwards' acts were the result of a City of Philadelphia policy, custom or practice
Defendant also asks this court to grant summary judgment in its favor because even if Edwards was acting under color of state law, "discovery has adduced no evidence that his acts were the result of a City of Philadelphia policy, custom or practice." Def.'s Brief at 9.
Plaintiff states a number of legal theories in Count IX of his complaint but briefs only the "policy, custom or practice" theory. I will therefore consider him to have waived any other legal theories stated.
It is well established that a city may be liable under § 1983 for monetary, declaratory, or injunctive relief where the alleged unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). Local governments may also be sued for constitutional deprivations under § 1983 that occur "pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91. The Supreme Court has made clear that a city cannot be held liable under the theory of respondeat superior, that is, "a municipality cannot be held liable solely because it employs a tortfeasor." Id. at 691. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
"A § 1983 plaintiff thus may be able to recover from a municipality without adducing evidence of an affirmative decision by policymakers if able to prove that the challenged action was pursuant to a state `custom or usage.'" Pembaur v. City of Cincinnati et al., 475 U.S.469, 483 n. 10 (1986). "Congress included customs and usages in § 1983 because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law." Monell, 436 U.S. at 691.
Plaintiff alleges that various City of Philadelphia policies and directives and disciplinary codes required Edwards to call 9-1-1 and "to be a good witness" when he was off-duty and noticed that Pryer had violated the protection from abuse order. Pl.'s Brief at 24. Plaintiff argues that Edwards failed to call 9-1-1 and instead used excessive force because the City failed to adequately train Edwards as to what police action he should take when he is off duty. Id. at 24.
The Supreme Court has found that a plaintiff may not bring suit under § 1983 "by merely alleging that an existing training program . . . represents a policy for which the city is responsible." City of Canton, Ohio v. Harris et al, 489 U.S. 378, 389-90 (1989). Instead, plaintiff must show that the police officer training executed by the Philadelphia Department was inadequate and that the inadequate training program can be said to represent "city policy." Id., 489 U.S. at 390. In order to show that the inadequate training program represents city policy, plaintiff must demonstrate that "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, [such] that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Id. at 390-91. The Court stated, for example, that the standard could not be met by showing that "an otherwise sound program has occasionally been negligently administered." Id. It is also not enough to prove that an injury or accident could have been avoided if an officer had better or more training. Id. at 391.
The only evidence that plaintiff cites to in support of his claim against the City of Philadelphia that Edwards' off-duty actions on September 19, 1998 were the result of the City's failure to properly train Edwards is Edwards' own failure to recall receiving any training or materials regarding appropriate off-duty action. Pl's Brief at 25. Plaintiff also points to Eieutenant James McCafferty's statement that Edwards would not have received Memorandum 98-1, dated February 27, 1998, as part of his instruction at the Philadelphia Police Academy because it was not in effect at the time he attended, from December 1996 to May 1997. Id.; McCafferty Dep. at 27-28 (Pl's Exhibits 86, 87).
Plaintiff points to Edwards' statements that show his failure to recall any specific courses he took at the Philadelphia Police Academy that covered off-duty responsibilities. Edwards Dep. at 12-13 (Pl.'s Exhibit 17). Edwards stated that he knew it was legal for him to carry his weapon off-duty, though he could not recall offhand receiving any police training, directives or memorandums addressing off-duty use of firearms. Edwards Dep. at 21, 125 (Pl's Exhibits 21 and 38). Edwards also does not recall whether or not the Academy trained him in off-duty police actions or that he was tested on that. Edwards Dep. at 127 (Pl's Exhibit 41). He also doesn't recall receiving instruction that off-duty officers should refrain from carrying firearms while off-duty when there is a likelihood that he may consume alcohol or medications. Edwards Dep. at 130 (Pl.'s Exhibit 43). Edwards could also not recall whether or not he was ever made aware that off-duty officers should not take police action in minor family or neighborhood disputes or in minor offenses such as disorderly conduct or traffic violations, unless such action is necessary to prevent bodily injury or death. Edwards Dep. 127-28 (Pl's Exhibit 41). Edwards does not recall ever being trained on the issue that unlawful use of police authority would not be tolerated by the department. Edwards Dep. at 133 (Pl's Exhibit 46).
Memorandum 98-1 discusses the procedures that the Philadelphia Police Department demands of its off-duty police officers. Memo. 98-1 (Pl's Exhibit 73). It provides that off-duty officers will not take police action in minor family or neighborhood disputes, or in minor offenses such as disorderly conduct or traffic violations unless such action is necessary to prevent bodily injury or death. Id. Memorandum 98-1 also provides that where an off-duty officer observes behavior warranting police intervention, the officer should dial 9-1-1, clearly identify himself as a police officer and be a good witness. Id. Upon arrival of on-duty police, the off-duty officer will turn over responsibility unless he is making an arrest. Id.
Plaintiff's evidence is simply not sufficient to support the conclusion that the City's police training program was inadequate, or that the need for more or different training was so obvious and so likely to result in the violation of constitutional rights. Plaintiffs evidence at best demonstrates that Edwards does not recall the specifics of his training. Edwards' failure to recall specific aspects of his training is not sufficient evidence to show that the training program was inadequate. It also does not follow that Edwards was inadequately trained because Memorandum 98-1 was not issued until after Edwards' training at the Academy was complete. Plaintiff has not shown that the policies therein were not already part of the program in some other form, or that, even if absent, such omissions were inadequacies so obvious and so likely to result in the violation of constitutional rights. As such, Pryer's evidence would not allow a reasonable fact-finder to conclude that policymakers of the city were deliberately indifferent.
Edwards attended the Police Academy in December 1996. Edwards Dep. at 12. He graduated from the Academy in May 1997. Id. His deposition was taken May 20, 2003, almost four years after he left the Philadelphia Police Department. Def.'s Reply at 2.
Moreover, plaintiff's cites to no evidence to demonstrate that the alleged inadequacies of the training program caused constitutional injury. "[F]or liability to attach [under § 1983] . . . the identified deficiency in a city's training program must be closely related to the ultimate injury." City of Canton, 489 U.S. at 391. Plaintiff has presented no evidence to establish this causal relationship.
Pryer also alleges negligence against the City of Philadelphia. Although he raised the issue, he did not brief it, and therefore I assume it is withdrawn. In any case, plaintiff has suggested no basis on which the City could be held liable for negligence (or gross negligence for that matter) under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541 et seq.
CONCLUSION
Plaintiff has presented enough evidence for a reasonable fact-finder to conclude that Edwards used his position as a police officer to commit the alleged acts. As such, I find that a reasonable fact-finder could conclude that Edwards was acting under purported state authority. However, I will grant defendant's summary judgment motion because plaintiff has not set forth sufficient evidence for a reasonable fact-finder to conclude that Edwards' acts were the result of a City of Philadelphia policy, custom or practice. An appropriate order follows.ORDER
And now on this ___ day of February 2004, upon consideration of the City of Philadelphia's motion for summary judgment as to Count IX pursuant to Fed.R.Civ.Pro. 56(c) (Doc. #28), plaintiff's opposition thereto and memorandum of law in support thereof, and defendant's reply, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED and judgment is entered in favor of the City of Philadelphiaonly. Trial is scheduled for April 5, 2004 at 10 A.M.