Igwe v. Skaggs et al

BRIEF in Support re Motion for Summary Judgment

W.D. Pa.May 17, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ANTHONY IGWE, as the Administrator of the Estate of PRISCILLA L. ROBINSON, Plaintiff, vs. JEREMY SKAGGS; MUNICIPALITY OF MONROEVILLE; GLOBAL TRAFFIC TECHNOLOGIES, INC.; and GLOBAL TRAFFIC TECHNOLOGIES, LLC; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION No.: 2:16-cv-1403 Honorable Mark A. Kearney Electronically Filed JURY TRIAL DEMANDED DEFENDANTS JEREMY SKAGGS AND MUNICIPALITY OF MONROEVILLE'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF CASE On December 8, 2014, at the intersection of SR 22 a/k/a William Penn Highway, Mall Plaza Boulevard and Holiday Center, a motor vehicle accident occurred between Monroeville Police Officer Jeremy Skaggs and Plaintiff’s Decedent, Priscilla Robinson. Officer Skaggs was responding to assist Monroeville Police Officer Jeremy Frisk who was attempting to apprehend a fleeing suspect in a police pursuit. In his Second Amended Complaint, Plaintiff alleged claims of Negligence against Officer Skaggs (Count I, p. 6), Vicarious Liability against the Municipality of Monroeville (Count II, p. 10), Negligence against the Municipality of Monroeville (Count III, p. 11), Violation of Civil Rights based upon a State Created Danger Exception against Officer Skaggs (Count IV, p. 13), and Violation of Civil Rights for Failure to Train and Supervise against Monroeville (Count V, p. 19), in addition to state law claims against the GTT Defendants. (See ECF #33). Defendants filed a Motion to Dismiss and Brief in support thereof in response to the Second Amended Complaint. (ECF #34, #35). Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 1 of 25 2 This Honorable Court issued a Memorandum Opinion and Amended Order on January 30, 2017. (ECF #47, #49). The Court granted Officer Skaggs qualified immunity on the Civil Rights, State Created Danger claim set forth in Count IV. (ECF #47, p. 11, #49, ¶ 2). The Court ruled that Plaintiff sufficiently pled an underlying Constitutional violation by Officer Skaggs and a potential Section 1983 supervisory liability claim under Monell against Monroeville. (ECF #47, pp. 13-14, 49, ¶¶ 1, 3). The Court also ruled that Plaintiff does not have a claim for punitive damages against Monroeville. (ECF #47, p. 14, #49, ¶ 5). The Court noted that ongoing discovery was required to determine if Plaintiff could sufficiently support his remaining causes of action. (ECF #47, p. 13-14, #49, ¶¶ 3-4). Defendants Skaggs and Monroeville hereby incorporate the undisputed material facts set forth Defendants' Statement of Undisputed Material Facts filed in support hereof, including their Appendix of exhibits. Following discovery, there are no issues of material fact preventing this Court from ruling on the issues at hand. Defendant Monroeville contends that it is entitled to judgment as a matter of law on Plaintiff's Section 1983 municipal liability or Monell claim in Count V of the Second Amended Complaint as: (1) Plaintiff has failed to adduce sufficient evidence to support his Monell claim or to otherwise raise an issue of fact that any policy, custom or practice of Monroeville or the failure to train or supervise by Monroeville caused a violation of the Decedent's Constitutional rights; and (2) Plaintiff failed to adduce sufficient evidence sufficient to raise an issue of fact of an underlying Constitutional violation such that liability under Monell cannot exist. It is requested then of this Honorable Court to grant Defendants' Motion for Summary Judgment dismissing Count V of the Second Amended Complaint and to decline to exercise jurisdiction over the remaining state law claims. However, should this Court not do so and continue to maintain jurisdiction over this case, summary Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 2 of 25 3 judgment should be entered in Monroeville's favor on Count III (Negligence) and also in Officer Skaggs' favor regarding Plaintiff's request for punitive damages pursuant to Count I (Negligence) of the Second Amended Complaint.1 (ECF #33, pp. 10). II. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate where "the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In Anderson v. Liberty Lobby, the Supreme Court held that the evidence creates a genuine issue of material fact only where it "is such that a reasonable jury could return a verdict for the nonmoving party . . . a party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. 242, 248 (1986). An issue is "genuine" if a reasonable jury possibly could hold in the nonmovant's favor on that issue. Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). To demonstrate that no material facts are in dispute, the moving party must show that the nonmoving party has failed to establish one or more essential elements of his or her case. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). A nonmovant's beliefs and/or speculations cannot defeat summary judgment. Lexington Ins. Co. v. Western Pa. Hosp., 423 F.3d 318, 332-33 (3d Cir. 2005). A "scintilla of evidence is clearly inadequate to create a genuine issue of material fact." Blackburn v. United Parcel Service, Inc., 179 F.3d 83, 103 (3d Cir. 1999). Moreover, evidence that is immaterial or irrelevant cannot defeat a motion for summary judgment. Id. at 97, 98. 1 As discussed in footnote 2., infra., if the request for punitive damages against Monroeville in reference to Count II for Vicarious Liability has not yet been dismissed pursuant to the Amended Order (ECF #49, ¶ 5), it should likewise be dismissed at this point. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 3 of 25 4 Finally, with regard to an issue on which the nonmovant has the burden of proof, "the burden on the moving party may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). III. ARGUMENT A. PLAINTIFF HAS NOT ADDUCED SUFFICIENT EVIDENCE TO RAISE A GENUINE ISSUE OF MATERIAL FACT TO SUPPORT HIS MONELL CLAIM AGAINST MONROEVILLE (COUNT V) BASED ON ANY POLICY, CUSTOM OR PRACTICE THAT ALLEGEDLY CAUSED A CONSTITUTIONAL VIOLATION. It is well established that "[t]o establish municipal liability, a plaintiff must: (1) identify a policy or custom; (2) attribute the policy to a municipal defendant; and (3) demonstrate a causal connection between the policy and the constitutional violation." Brown v. City of Pittsburgh, 2007 U.S. Dist. LEXIS 6411, 2007 WL 320833 (W.D. Pa. Jan. 30, 2007) (citation omitted). The moving Defendants hereby incorporate the arguments regarding the basic principles of municipal liability as set forth in the Motions to Dismiss the Complaint and Second Amended Complaints and briefs filed in support thereof. (ECF # 20, 23, 34, 35). In addition, a plaintiff must first establish an underlying constitutional violation to establish municipal liability under Section 1983. See Marable v. West Pottsgrove Twp., 176 Fed. Appx. 275, 283 (3d Cir. 2006); Grazier v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Furthermore, "municipal liability will only lie where municipal action caused an injury." Grazier, 328 F.3d at 124. Even pursuant to Fagan, which courts are largely critical of, there must still be an underlying Constitutional violation. See Washington- Pope v. City of Philadelphia, 979 F. Supp. 2d 544, 576 (E.D. Pa. 2013) ("Fagan I stands for the proposition that the City can independently violate the Constitution if it has a policy, practice, or custom of deliberate indifference that causes the deprivation of some constitutional right through Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 4 of 25 5 the actions of an officer, the 'causal conduit.'"). The failure to identify a policy or custom that caused the alleged constitutional violation is fatal to a municipal liability claim. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) ("[I]t 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.") (emphasis added); McTernan, 564 F.3d at 658 ("To satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was."). "A Section 1983 plaintiff seeking to impose liability on a municipality must plead that the municipality acted with 'deliberate indifference' in adopting a custom or policy that then caused a constitutional deprivation." Banks v. City of York, 2015 U.S. Dist. LEXIS 88047, *19, 2015 WL 4092342 (M.D. Pa. 2015) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 124 (1992)). "Deliberate indifference is a very high standard to meet, requiring at the pleading stage that a plaintiff make a plausible factual allegation that a municipal actor disregarded the known or obvious consequences of his or her actions." Banks, 2015 U.S. Dist. LEXIS 88047, *19-20 (citing Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 410 (1997)). To establish deliberate indifference in a municipal liability action, "[a] pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 563 U.S. 51, 131 (2011) (citing Bryan County, 520 U.S. at 412-415); Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). In the ordinary case, a pattern of violations is necessary to show that the policymakers knew of their custom or policy's deficiency, knew of their custom or policy's propensity to cause constitutional harm, and yet deliberately took no curative action. Connick, 131 S.Ct. at 1361. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 5 of 25 6 Initially of note is that Plaintiff's Section 1983 municipal liability is based on the alleged "failure to train and supervise" (see ECF #33, p. 19), and this Court noted that it is supervisory liability claim (see ECF #49, ¶ 3). Therefore, Plaintiff is not alleging that some adopted policy, custom or practice caused a Constitutional violation of which Officer Skaggs might be seen as a conduit. Regardless, Plaintiff has not adduced sufficient evidence to raise an issue of fact that a custom, practice or policy of Monroeville caused the alleged Constitutional violation. The Monroeville Police Department has a Policy and Procedures Manual that contains Chapter 28 regarding "Vehicle Operations." (Statement of Undisputed Material Facts (hereinafter "SMF"), ¶ 7). Chapter 28, Section 28.1.1. of the "Vehicle Operations" policy requires Monroeville Police Officers "to always drive safely and comply with state and local laws" and provides that they "have the duty to drive with due regard for the safety of all persons." (SMF, ¶ 9). Section 28.1.1 regarding "Emergency Response" provides in part that Monroeville police officers are to drive "in a more expeditious but safe matter according to state law with continuous use of emergency equipment." (SMF, ¶ 10). According to state law, Title 75 of the Motor Vehicle Code, the driver of a police patrol vehicle responding to an emergency may proceed past red signals "but only after slowing down as may be necessary for safe operation," may exceed "maximum speed limits so long as the driver does not endanger life or property," and may "disregard regulations governing direction of movement" when the vehicle is using its emergency lights and siren. See 75 Pa.C.S. § 3105(a), (b)(2)-(4), (c). Section 3105 of the Motor Vehicle Code is thus incorporated into the "Vehicle Operations" policy and thereby provides how the police officers are to respond in an emergency response. (SMF, ¶¶ 12, 14). Similarly, the Policy and Procedures Manual contains a section regarding "Emergency Response Mode." (SMF, ¶ 11). During the incident and at the time of impact, Officer Skaggs was engaged in an "emergency response" Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 6 of 25 7 under that response classification with the emergency lights and siren of his patrol vehicle in operation. (SMF, ¶¶ 80, 93, 109-111). Officer Skaggs understood the parameters regarding emergency response driving and Section 3105. (SMF, ¶¶ 52-56, 61). Therefore, no policy, custom or practice of Monroeville caused or was otherwise the "moving force" behind any purported or alleged Constitutional violation of which Officer Skaggs can be seen as a "conduit." In reference to the Opticom System, any such emergency traffic control signal preemption system is not mandatory under Pennsylvania law but is merely an extra device. (SMF, ¶¶ 39, 63). See also 75 Pa. C.S.A. § 3105(g)(1) ("The department may promulgate regulations for the operation and use of preemptive traffic devices by emergency vehicles.") (emphasis added). There is no law in this Commonwealth requiring the use of emergency preemption systems and Plaintiff has not identified any. Therefore, the Opticom System is really superfluous as emergency responders are permitted to proceed past red signals and must comply with state law. See 75 Pa. C.S.A. § 3105(b)(2). Monroeville police officers are trained on the Opticom System through the "Vehicle Operations" and field training with a field training officer. (SMF, ¶ 34). The "Vehicle Operations" policy contains a section regarding the Opticom System. Pursuant to policy, officers are not to rely on the Opticom System to get through an intersection but on Section 3105; The Opticom policy specifically warns officers that the System can be over run and not to rely on the system by anticipating that the light is going to change in their favor. (SMF, ¶¶ 35-37). Even with the Opticom System, officers are still to drive safely while responding to an emergency. (SMF, ¶ 41). Monroeville's Policy adequately addresses the Opticom System's limitations and explicitly warns against reliance upon the system and disregard of state laws regarding emergency driving. Furthermore, Officer Skaggs' was trained on the Opticom policy and acted consistent with the Opticom policy as did not rely on the Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 7 of 25 8 Opticom System during the incident but on Section 3105. (SMF, ¶¶ 58-61, 64). Therefore, no policy, custom or practice of Monroeville as related to the Opticom System caused a Constitutional violation. In addition, there is no evidence of a pattern of prior Constitutional violations or danger created by the "Vehicle Operations" policy. To the contrary, there were no motor vehicle accidents involving Monroeville police patrol vehicles and other vehicles while operating in an emergency response with lights and sirens activated either as a result of high or excessive speeds or when proceeding through intersections from the enactment of the Vehicle Operations policy and prior to the subject accident. (SMF, ¶ 42). As stated above, Plaintiff failed to produce any evidence that the "Vehicle Operations" was the moving force behind the alleged Constitutional violation. More importantly, Plaintiff failed to produce any evidence of prior notice on the part of Monroeville of any policy had a propensity to cause the alleged Constitutional violation in this case. Thus, an issue of fact regarding deliberate indifference is lacking as there is insufficient evidence from which a reasonable jury could find that any policy, custom or practice of Monroeville is conscience shocking and summary judgment should be entered in its favor. See Benn v. Universal Health Sys., 371 F.3d 165, 174 (3d Cir. Pa. 2004) ("Whether an incident "shocks the conscience" is a matter of law for the courts to decide"). B. PLAINTIFF HAS NOT ADDUCED SUFFICIENT EVIDENCE TO RAISE A GENUINE ISSUE OF MATERIAL FACT TO SUPPORT HIS MONELL CLAIM AGAINST MONROEVILLE (COUNT V) BASED ON SUPERVISORY LIABILITY. 1. Plaintiff has not produced sufficient evidence to establish an issue of fact regarding deliberate indifference by Monroeville concerning any claim based an alleged failure to train. Municipal liability may be based on a failure to train police officers, because a city may "actually have a policy of not taking reasonable steps to train its employees." City of Canton v. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 8 of 25 9 Harris, 489 U.S. 378, 390 (1989). Regarding "failure to train" claims, "a municipality is only liable for failing to train when that 'failure amounts to deliberate indifference to the [constitutional] rights of persons with whom the police come in contact.'" Woloszyn v. County of Lawrence, 396 F.3d 314, 324-325 (3d Cir. 2005) (internal quotations omitted; citations omitted). See also Brown v. City of Pittsburgh, 2007 U.S. Dist. LEXIS 6411, *12-13, 2007 WL 320833 (W.D. Pa. Jan. 30, 2007) ("Plaintiff must identify a failure to provide specific training that has a causal nexus to his injuries and must show that the absence of such training reflects deliberate indifference by the City to whether the constitutional violation occurred.") (emphasis added). Furthermore, "[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights." Connick, 131 S. Ct. at 1360. "In order to find liability under Monell on a failure to train theory, the 'City's failure to train its police officers must reflect a deliberate or conscious choice by policymaking officials, such that one could call it the City's policy or custom.'" Davenport v. Borough of Homestead, 2016 U.S. Dist. LEXIS 136448, *71- 72 (W.D. Pa. Sept. 30, 2016) (quoting Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003)). Furthermore, "[m]unicipal liability for failure to train is narrow." Davenport v. Borough of Homestead, 2016 U.S. Dist. LEXIS 136448, *71 (W.D. Pa. Sept. 30, 2016) (citing Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir.2001)). There must be a direct causal link between the deficient training and the alleged Constitutional violation. Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (citations omitted). Typically, "[a] pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference." Connick v. Thompson, 563 U.S. 51, 62 (2011). Merely alleging other Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 9 of 25 10 training that could have been done or other options to approach a scenario were viable is not sufficient grounds for a failure to train or deliberate indifference claim against a municipality. Carswell, 381 F.3d at 245 (citing City of Canton, 489 U.S. at 392). Regarding the issue of training, Officer Skaggs was Act 120 certified at the time of the accident through MPOETC. (SMF, ¶ 44). He completed driver training through his Act 120 training when he went through the City of Pittsburgh Police Academy and worked as a police officer for Pittsburgh for approximately seven years prior to being hired with Monroeville. (SMF, ¶¶ 45-47). When hired by Monroeville, he was provided with Monroeville Police Department's Policy and Procedures Manual, which included Chapter 28, "Vehicle Operations," and instructed to read it. (SMF, ¶¶ 20-21, 49-50). As indicated above, he understood the parameters of emergency response driving and Section 3105 of the Motor Vehicle Code. (SMF, ¶¶ 52-56). Also when hired, Officer Skaggs went through the minimum probation period of six months that included three months of riding with a field training officer and three months of shadowing by another officer when going on calls. (SMF, ¶¶ 21-25). His training therefore was appropriate. See Cannon v. Taylor, 782 F.2d 947, 951 (11th Cir. 1986) (holding that standard police academy training on vehicle operations and on applicable state laws regarding emergency driving including a police department policy that incorporated state law on emergency driving was sufficient under section 1983). More importantly, there is no evidence of past similar incidents that might be construed to be violations of the "Vehicle Operations" policy or of state law, i.e., 42 Pa. C.S.A. § 3105, to put Monroeville on notice of inadequate or insufficient training. As previously stated, Monroeville is unaware of prior motor vehicle accidents involving Monroeville police vehicles engaging in an emergency response as a result of high or excessive speeds or when traveling Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 10 of 25 11 through intersections. (SMF, ¶ 42). See Case v. Kitsap County Sheriff's Dep't, 249 F.3d 921, 932 (9th Cir. 2001) (holding that liability based on the failure to train cannot be based on isolated sporadic events). Monroeville's "Vehicle Operations" policy mandates that its officers comply with state law requirements and drive safely. Plaintiff failed to prove any gap in training that reflected a deliberate or conscious indifference to a danger presented to the public. Plaintiff failed to produce any evidence that Monroeville was deliberately indifferent to a pattern of violations of the policy or that a lack of training caused the injuries sustained by the Decedent. Regardless, at most, any prior similar actions could have constituted violations of state law regarding emergency driving, which would be insufficient to support Section 1983 municipal liability. See Cannon, 782 F.2d at 951 ("Simple failure to correct violations of state law does not equate to an indifference to constitutional rights."). Therefore, summary judgment should be entered in favor of Monroeville on Count V. 2. Plaintiff has not produced sufficient evidence to establish an issue of fact regarding deliberate indifference by Monroeville concerning any claim based an alleged failure to supervise. Under Santiago v. Warminster, 629 F. 3d 121 (3d Cir. 2010), when an allegation is tied to a specific day and incident for which a specific supervisor would have been responsible for this action, that supervisor must be named as a defendant to create liability. Personal involvement by a defendant can be shown by alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions. Oliver v. Symons, 2009 U.S. Dist. LEXIS 129448, *25 (M.D. Pa. Feb. 18, 2009) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). "Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Id. See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In this case, Plaintiff did not name as a defendant an individual supervisor who allegedly failed to properly supervise Officer Skaggs allegedly resulting in a Constitutional violation and Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 11 of 25 12 Monroeville can have no liability for such action. Blatt v. Pa. Bd. of Prob. & Parole, 2014 U.S. Dist. LEXIS 106577, *26 2014 WL 3845725 (W.D. Pa. Aug. 4, 2014) (the "doctrine of respondeat superior has been rejected as a basis for liability under section 1983.") Thus, Plaintiff cannot proceed with any failure supervise claim where there is no evidence that any supervisor personally participated in the accident, that the supervisor directed the Constitutional violation, or that the supervisor had knowledge that the activity was occurring and acquiesced in it. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence."). Furthermore, there is no evidence of any similar incidents where Monroeville police officers have not been disciplined. During the incident, both Chief Cole and Sgt. (then Corporal) Safar were listening and monitoring the incident as it unfolded and both responded to the accident, and it was Chief Cole that contacted the Allegheny County Police Department to investigate the accident. (SMF, ¶¶ 129-132). No evidence was produced of knowledge and acquiescence to Officer Skaggs's actions when he was approaching and entering the intersection where the accident occurred. It was not until shortly prior to the accident that Officer Skaggs was first heard on the police radio as he was keeping the radio clear for Officer Frisk's priority pursuit. (SMF, ¶¶ 113-116, 124). Accordingly, summary judgment should be entered in favor of Monroeville should Count V be construed to be based on supervisory liability. C. PLAINTIFF HAS NOT ADDUCED SUFFICIENT EVIDENCE TO RAISE A GENUINE ISSUE OF MAERIAL FACT TO ESTABLISH CONSCIENCE SHOCKING CONDUCT BASED ON AN UNDERLYING CONSTITUTIONAL VIOLATION TO SUPPORT PLAINTIFF'S MONELL CLAIM (COUNT V). As indicated above, to establish a Section 1983 municipal liability claim, a plaintiff must first establish an underlying Constitutional violation. See Marable, supra.; Grazier, supra. See also Davenport, 2016 U.S. Dist. LEXIS 136448, *43 (holding that a Constitutional violation by Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 12 of 25 13 the Borough of Homestead police officers was required to find the Borough and its police chief liable under Section 1983); Grazier v. City of Philadelphia, 2001 U.S. Dist. LEXIS 15876, *5, 2001 WL 1168093 (E.D. Pa. July 25, 2001), aff'd 328 F.3d 120 (3d Cir. 2003) ("a municipality cannot be held liable under Section 1983 for failure to train, supervise, or discipline individual employees if those individuals themselves did not violate the plaintiffs' rights."). Monroeville incorporates herein by reference its Brief in Support of Motion to Dismiss Plaintiff's Complaint and Second Amended as though the same have been fully set forth at length regarding the discussion of the standards to establish an underlying substantive due process violation in this instance. (ECF #20, #23, #34, #35). Similarly, as previously argued in those Briefs, no liability on a state created danger theory can be imposed because auto accidents such that which is at issue are not the subject of such claims. Although auto accidents involving municipal police officers might give rise to a negligence claim but it is well-established that they do not result in Constitutional violations. See Sanford v. Stiles, 456 F.3d 298, 311 (3d Cir. 2006) (under a stated created danger theory, "[m]ere negligence is not enough to shock the conscience."); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 911 (3d Cir. 1997); Fagan v. City of Vineland, 22 F.3d 1296, 1308 (3d Cir. 1994) (holding that a pursuit at high speeds in a populated area, which resulted in the pursued individual's and officer's vehicles striking the plaintiff's vehicle, severely and permanently injuring her, was disturbing and lacked judgment, but did not rise to the level of shocking the conscience); Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (no substantive due process violation where an officer proceeded through an intersection at high speed, with emergency lights and siren and through a red traffic signal colliding with another vehicle); Green v. Post, 574 F.3d 1294 (10th Cir. 2009) (not conscience shocking where a deputy sheriff traveled at Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 13 of 25 14 excessive speed through an intersection in a non-emergency rapid response situation without emergency lights and siren operating); Cannon, 782 F.2d at 950 (11th Cir. 1986) (holding that a woman killed in a collision caused by a police officer proceeding through an intersection against a red light without sirens or lights did not rise to the level of a constitutional deprivation as the negligent "operation of a motor vehicle by a policeman acting in the line of duty has no section 1983 cause of action for violation of a federal right" although "[t]he type of negligence alleged in this case may well be actionable under state law"); Leddy v. Township of Lower Merion, 114 F. Supp. 2d 372 (E.D. Pa. 2000) (no substantive due process violation when a police officer who was responding to a non-emergency radio call at an excessive rate of speed without emergency lights and siren struck plaintiff's vehicle that entered the roadway from a parking lot resulting in personal injuries); Gillyard v. Stylios, 1998 U.S. Dist. LEXIS 20251, *13, 1998 WL 966010 (E.D. Pa. Dec. 23, 1998) (holding that the officers' conduct was not conscience shocking when speeding to the scene of a suspected emergency with emergency equipment operating and entering an intersection against a red light striking and killing an innocent pedestrian). Here, the Decedent eventually died as a result of a collision at an intersection Officer Skaggs was attempting to clear safely while responding to an emergency regarding Officer Frisk's pursuit. (SMF, ¶ 1). Officer Skaggs utilized his lights and sirens when responding as backup and did not rely on the Opticom system to clear an intersection before proceeding through. (SMF, ¶¶ 96, 100). Officer Skaggs applied his brakes and slowed down prior to entering the intersection prior to observing the Decedent's vehicle and once he did observe it, hard braked and attempted an evasive maneuver after she did not yield for his vehicle. (SMF, ¶ 82-84, 90). Throughout discovery, no facts were established that rise to the level of conscience shocking regarding Officer Skaggs's conduct in operating his patrol vehicle. Even if it is argued that he Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 14 of 25 15 violated the "Vehicle Operations" policy or state law regarding emergency driving, this does not rise to the level of a Constitutional violation. Terrell, 396 F.3d at 981 (although the violation of “police department regulations in proceeding through the intersection at high speed may raise an issue of state tort law, it is not of substantive due process significance.”). See also Boveri v. Town of Saugus, 113 F.3d 4, 7 (1st Cir. 1997) ("A regulatory violation, like a violation of state law, is not inherently sufficient to support a § 1983 claim."); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) ("'42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.'") (citation omitted); Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir. Kan. 1995) ("violation of a police department regulation is insufficient for liability under section 1983."). Regardless, there is no evidence sufficient to support a finding that Officer Skaggs intended to harm the Decedent, which should be applicable here based on the discussion previously set forth in Defendants' Briefs in Support of the Motions to Dismiss. (ECF #23, #35). The "intent to harm" standard of County of Sacramento v. Lewis is applicable because Officer Skaggs believed he was responding to an emergency, which cannot be disputed and which is not unreasonable considering the circumstances of the incident as set forth in Defendants' Concise Statement of Undisputed Material Facts. See Sitzes v. City of W. Memphis Ark., 606 F.3d 461, 467 (8th Cir. 2010) (stating that "because 'substantive due process liability . . . turns on the government official's evil intent,' we rejected the district court's objective consideration of what constituted an emergency and "conclude[d] that [the] issue turns on whether the deputies subjectively believed that they were responding to an emergency.'") (quoting Terrell, 396 F.3d at 980 (holding that "the intent to harm standard applied as a matter of law" because it was undisputed that the officers "believed they were responding to an emergency")). Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 15 of 25 16 As also previously discussed, the intent to harm standard is not limited to high speed pursuits as confirmed by the Eastern District of Pennsylvania that stated that “[e]very court addressing police conduct since Lewis has found its reasoning extends beyond high-speed pursuit of suspected criminals” and also that "[t]he Lewis opinion was not limited to its precise facts." Gillyard, 1998 U.S. Dist. LEXIS 20251, *13 (see cases cited therein; citations omitted). See also Sitzes v. City of W. Memphis Ark., 606 F.3d 461, 467 (8th Cir. 2010) (stating "'that the intent- to-harm standard of Lewis applies to an officer's decision to engage in high-speed driving in response to other types of emergencies [besides the high-speed pursuit of a fleeing suspect], and to the manner in which the police car is then driven in proceeding to the scene of the emergency.'") (quoting Terrell, 396 F.3d at 979). See also Carter v. Simpson, 328 F.3d 948 (7th Cir. 2003) (applying the intent to harm standard and determining no conscience shocking conduct involving an accident involving a deputy sheriff who traveled through an intersection against a red light in oncoming travel lanes with lights and siren activated striking a crossing vehicle when responding to an emergency dispatch call to another officer that was overheard); Marcelle v. City of Allentown, 2010 U.S. Dist. LEXIS 31649, *28, 2010 WL 1373661 (E.D. Pa. Mar. 30, 2010) (applying the intent to harm standard regarding an accident between two patrol vehicles responding to an emergency call resulting in injuries and death to bystanders). Plaintiff cannot succeed in the underlying substantive due process claim based upon a state created danger as the intent to harm standard is applicable to the facts faced by Officer Skaggs. Officer Skaggs heard Officer Frisk call in the plate that came back to a Chevy but that the plate or registration was attached to a Hyundai, after which Officer Frisk advised that he was going to attempt to make a traffic stop on the vehicle. (SMF, ¶ 101). At approximately 12:01:20 p.m. according to the Audio Recordings, Officer Jeremy Frisk (#991) calls out or states "Unit Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 16 of 25 17 991 priority!" to advise that he was involved in a pursuit. (SMF, ¶¶ 102-103). Officer Skaggs then activated the emergency visual lights and audible siren of his patrol vehicle. (SMF, ¶ 80). Officer Skaggs believed that Officer Frisk was involved in a motor vehicle pursuit of the suspect that Officer Frisk attempted to stop. (SMF, ¶ 106). At the time of the incident, Officer Skaggs was responding as backup in an "Emergency Response" and "Emergency Response" classification of the "Vehicle Operations" policy to assist in a backup capacity as Officer Jeremy Frisk engaged in a pursuit. (SMF, ¶¶ 80, 109-111). During the incident, Officer Frisk then radios that the suspect was reaching around in the vehicle a lot and acting very awkwardly, which indicated to Officer Skaggs that the suspect may have been reaching for a weapon or other contraband. (SMF, ¶ 118). Shortly thereafter, Officer Frisk then exclaims that the suspect was bailing out of the vehicle. (SMF, ¶ 119). According to the time reflected in the audio recordings, at approximately 12:03:43 p.m., the Monroeville Dispatcher then radioed to Officer Skaggs (#982) asking to go assist Officer Frisk stating “982, can you start that way as well?" after which he responded that he was "already en route." (SMF, ¶ 124). At about or shortly prior to the impact, Officer Frisk then radios about the male suspect stating that the suspect had something in his hand that was as possible firearm and requested police units. (SMF, ¶ 125). Regarding the video from the in-car camera, Officer Skaggs applied the brakes of his patrol vehicle to slow down approximately seven car lengths away from entering the intersection where the accident occurred. (SMF, ¶ 82, 83). As Officer Skaggs approached the intersection of the collision, he applied his brakes, slowed down, scanned the intersection to make sure there was no traffic, and the intersection appeared to be clear as he approached. (SMF, ¶ 86). The driver of the vehicle in the left hand lane next to Plaintiff's Decedent stopped and yielded to Officer Skaggs. (SMF, ¶ 88). The Decedent's vehicle did not stop as Officer Skaggs approached Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 17 of 25 18 and entered the intersection. (SMF, ¶ 89). When Officer Skaggs entered the intersection where the accident occurred, Officer Skaggs attempted an evasive maneuver by steering or veering to his left to avoid hitting the Decedent's vehicle but her vehicle did not stop or yield and continued to travel in the path of Officer Skaggs. (SMF, ¶ 90). As indicated, Officer Skaggs believed he was responding to an emergency, which left little to no time to deliberate before acting. Therefore, the intent to harm standard should be applied although no evidence exists of an intent to harm. Rather, the evidence produced during discovery shows that Officer Skaggs slowed down prior to entering the subject intersection, before Decedent's vehicle can be observed, in accordance with Section 3105 and was not relying on the Opticom system. Officer Skaggs acted in a manner that does not remotely shock the conscience, let alone show intent to harm. Therefore, the facts demonstrate that no underlying Constitutional violation occurred negating any potential Section 1983 municipal liability claim against Monroeville. However, this Court stated that Plaintiff alleged that Officer Skaggs's behavior may have violated the intermediate level of culpability under a state created danger theory by consciously disregarding a substantial risk that great harm would result from his conduct. (ECF #47, p. 6) (citing Sanford, 456 F.3d 298). In Sanford, the Third Circuit found that an intermediate standard between intent to harm and deliberate indifference could be applicable in some cases. 456 F.3d at 306. In the Third Circuit, this intermediate standard however has not been applied to police officers' emergency responses in their patrol vehicle. See Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (applying conscious disregard where a social worker believed children were subject to abuse and removed from the mother's car). See also Sanford, 456 F.3d at 306 (citing Nicini v. Morra, 212 F.3d 798, 800-01 (3d Cir. 2000) (applying this standard to the Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 18 of 25 19 placement of a minor in a foster care home); Ziccardi v. City of Philadelphia, 288 F.3d 57, 58-59 (3d Cir. 2002) (discussing paramedics carelessly lifting an individual and dropping him, resulting in paralysis)). The Third Circuit further elaborated that this intermediate level applies to situations where the state actor is required to act "in a matter of hours or minutes." Sanford, 456 F.3d at 309-10. In a "state created danger case, when a state actor is typically not confronted with a 'hyperpressurized environment' but nonetheless does not have the luxury of proceeding in a deliberate fashion, the relevant question is whether the officer consciously disregarded a great risk of harm." Id. at 310. However, mere negligence is not enough to shock the conscience and create liability under the Fourteenth Amendment. Id. at 311 (citing Schieber v. City of Philadelphia, 320 F.3d 409, 419 (3d Cir. 2003)). For the reasons set forth above, the conscious disregard standard is not the appropriate standard to apply to Officer Skaggs's actions due to the tense and rapidly evolving situation with Officer Frisk's pursuit. The appropriate standard is the intent to harm. However, even if the court applies the conscious disregard standard, Plaintiff failed to produce any evidence that Officer Skaggs consciously disregarded the danger. As discussed in the prior section, Officer Skaggs activated his emergency lights and siren pursuant to policy, cleared all of the intersections prior to the accident, believed that he was under control, slowed down as he approached the subject intersection, and attempted to execute an evasive maneuver to avoid the collision where the Decedent's vehicle did not stop or yield unlike the vehicle to her left. Officer Skaggs's actions show that he had an acute awareness of the dangers presented by his driving and made reasonable attempts to prevent harm. More specifically to Plaintiff's Decedent, Officer Skaggs took the additional step of attempting to execute an evasive maneuver to avoid the collision. A failure to fully execute the evasive maneuver or slow down sufficiently is negligence at best, Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 19 of 25 20 which is denied, but does not rise to the level of a Constitutional violation or show a conscious disregard of a risk. Therefore, summary judgment is also appropriate on Count V as no conscience shocking conduct based on an underlying Constitutional violation occurred. D. SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF MONROEVILLE WITH REPSECT TO PLAINTIFF'S CLAIM FOR NEGLIGENCE (COUNT III) AS IT FAILS IN ALL RESPECTS. In Plaintiff's Negligence claim (Count III), Plaintiff alleges inter alia that Monroeville was negligent in failing to train, supervise, and/or control various aspects of the police department, including officer driving, emergency response driving, and the Opticom System, and also failed to establish additional policies. (ECF #33, ¶ 71). It is axiomatic that Defendant Municipality of Monroeville is a local governmental agency entitled to governmental immunity as preserved in the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541, et seq. Absent from the eight (8) enumerated exceptions to governmental immunity set forth in 42 Pa. C.S.A. § 8542(b) are circumstances arising from the alleged negligent training, monitoring and supervision of employees, and from the alleged negligent failure to have proper training procedures, plans and policies in place. In fact, the Court of Common Pleas of Lancaster County stated as follows with respect to such claims: Pennsylvania courts have consistently rejected arguments that claims involving negligent supervision, failure to supervise or negligent policies and procedure fall within an exception to immunity. See Mascaro, 514 Pa. at 362, 523 A.2d at 1124. Similarly, claims for failure to properly train, hire or employ workers have been held by the courts to be barred by governmental immunity. See Farber v. Pennsbury School District, 131 Pa. Commw. 642, 571 A.2d 546 (1990); Prescott v. Philadelphia Housing Authority, 124 Pa. Commw. 124, 555 A.2d 305 (1989). Haefner v. Steward, 19 Pa. D. & C.4th 152, 155 (C.P. Lanc., 1993). See also Asbury v. Port Auth. Transit, 863 A.2d 84, 91 (Pa. Cmwlth. 2004) (failure to have witness card policy not actionable within any exception to governmental immunity); Dreistadt v. Greater Latrobe School Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 20 of 25 21 Dist., 38 Pa. D. & C.3d 185, 187 (C.P. West., 1985) (“It has been held that a school district is immune from suit for claims of failure to employ trained personnel, failure to supervise the employees or failure to promulgate proper rules, regulations and procedures.”) (citing Wimbush v. School District of Penn Hills, 430 A.2d 710 (Pa. Cmwlth. 1981)). Furthermore, Plaintiff’s allegations in Paragraph 71 do not fall within the Vehicle liability exception, 42 Pa. C.S.A. § 8542(b)(1), because the term "operation" means to actually put the vehicle in motion. See Love v. City of Philadelphia, 543 A.2d 531, 533 (Pa. 1988) (holding that "operation" or "to operate something" means "to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating the vehicle."). Unlike the negligence allegations in Count I (see ECF #33, ¶ 58), the allegations in Count III do not relate to the actual operation or movement of the police patrol vehicle involved in the accident. Thus, they are not actionable under the Vehicle liability exception. In Paragraphs 72-73 of the Negligence claim against Monroeville in Count III, Plaintiff appears to be alleging that the Opticom System was in a dangerous or defective condition such that it was a cause of the accident. (See ECF #33, ¶¶ 72-73). Presumably if any exception to governmental immunity is applicable to hold Monroeville liable for these particular allegations, it could only be the Trees, traffic controls and street lighting exception, which pertains to a dangerous condition of an existing traffic control device, see 42 Pa. C.S.A. § 8542 (b)(4), and which, like all the exceptions, is to be strictly construed, see Lockwood v. Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2001). This exception to governmental immunity for signs and traffic signals applies to negligence claims in reference to existing traffic controls which malfunction or fail, causing motorists to collide by misdirecting them, or by improperly instructing or directing them to take inappropriate action, or by otherwise creating confusion. See, e.g. Crowell v. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 21 of 25 22 Philadelphia, 613 A.2d 1178 (Pa. 1992) (where there existed a sign that warned or directed motorists that a road was bending or curving left but where the actual road bended or curved to the right); Slough v. Philadelphia, 686 A.2d 62 (Pa. Cmwlth. 1996) ("Official traffic-control devices are 'signs, signals, markings, and devices…for the purpose of regulating, warning or guiding traffic.' Further, DOT regulations define 'traffic signal' as a 'power-operated traffic control device…by which traffic is warned or directed to take some specific action.'") (citing 67 Pa. Code § 211.1); Constanzo v. Yetzer, 5 Pa. D. & C.5th 310, 315 (C.P. Berks, 2007), affirmed 949 A.2d 982 (Pa. Cmwlth. 2008) (holding that a local public agency can "only have liability if there is a 'malfunction' or a defect to a traffic control device"). To further illustrate this legal principle, in Carpenter v. Pleasant, 759 A.2d 411 (Pa. Cmwlth. 2000), Whitman v. City of Scranton, 471 A.2d 521 (Pa. Super. 1984), and Spisak v. Downey, 13 Pa. D. & C.4th 228 (C.P. Dauphin), aff'd 618 A.2d 1174 (Pa. Cmwlth. 1992), motor vehicle accidents occurred at intersections where the traffic signals concurrently turned green in conflicting directions resulting in a malfunctioning or defective condition. Here however, Plaintiff has not adduced any evidence to establish that the Opticom System, assuming arguendo it is a traffic control device in and of itself, which is denied, directed or instructed Plaintiff's Decedent to take some driver action that she would not have normally taken but for the dangerous condition of the Opticom System resulting in the accident. Similarly, the Opticom System did not cause or direct Officer Skaggs to take any action that he would not have normally taken considering he was not even relying on it at the time of the accident. Furthermore, there is no evidence that the Opticom System or the traffic signal malfunctioned. As such, there is simply no evidence of the existence of a dangerous condition of the Opticom System or of even the traffic signal at the subject intersection was a cause of the accident. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 22 of 25 23 Furthermore, to impose liability under the Trees, traffic controls and street lighting exception, a plaintiff must establish that the local governmental agency had prior notice of the existence of not only the condition at issue, but also notice that it was known to be dangerous. See 42 Pa. C.S.A. § 8542(b)(4); Wenger v. W. Pennsboro Twp., 868 A.2d 638, 642 (Pa. Cmwlth. 2005) (stating that "notice, is an element of the plaintiff's burden in every case related to establishing a local agency's duty concerning a dangerous condition of traffic controls and streets."). To establish the notice element, there must be evidence of prior notice of the precise and specific dangerous condition allegedly at issue. See Kennedy v. City of Phila., 635 A.2d 1105, 1110 (Pa. Cmwlth. 1993), aff'd 658 A.2d 788 (Pa. 1995); Fenton v. Philadelphia, 561 A.2d 1334, 1336 (Pa. Cmwlth. 1989), aff'd 585 A.2d 1003 (Pa. 1991). Here however Plaintiff has not adduced any evidence to raise an issue of fact on the issue of prior notice of the existence of a dangerous condition of the Opticom System or traffic signal that allegedly caused the accident. Therefore, the Trees, traffic controls and street lighting exception is not applicable to impose liability against Monroeville for Negligence and it is entitled to governmental immunity. E. SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF OFFICER SKAGGS REGARDING PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES FROM HIM UNDER PLAINTIFF'S NEGLIGENCE CLAIM IN COUNT I. Plaintiff is seeking punitive damages in reference to his Negligence claim (Count I) against Officer Skaggs.2 (See ECF #33, p. 10). However, punitive damages are not recoverable under negligence because they are only appropriate where the plaintiff can establish that the 2 This Court held in its Amended Order (ECF #49, ¶5) that "Plaintiff concedes Monroeville is not liable for § 1983 punitive damages (ECF Doc. No. 39), and we accordingly dismiss all claims for punitive damages against Monroeville." If there is a question whether this Court dismissed the request for punitive damages in reference to Count II against Monroeville (no request was made in Count III), it too should be dismissed as governmental entities cannot be liable for the imposition of punitive damages even under state law claims. See Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423, 444 (E.D. Pa. 1998) ("municipalities are not liable for punitive damages under Pennsylvania state law claims"); Feingold v. SEPTA, 517 A.2d 1270, 1276 (Pa. 1986) ("government agencies have been exempt from the imposition of punitive damages."); Bensalem v. Press, 501 A.2d 331, 339 (Pa. Cmwlth. 1985) (punitive damages from a municipality under a theory of vicarious liability are prohibited). Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 23 of 25 24 "defendant has acted in an outrageous fashion due to either 'the defendant's evil motive or his reckless indifference to the rights of others.'" Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005). As such, "punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct." Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005). In addition, "'the state of mind of the actor is vital.'" Id. at 770 (citation omitted). The defendant must "consciously realize the high degree of risk involve" to justify an aware of punitive damages. Snead v. SPCA, 929 A.2d 1169, 1185 (Pa. Super. 2007). Therefore, "a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed." Phillips, 883 A2d. at 445. For the reasons stated above, Plaintiff has not established that Officer Skaggs acted with malice or with an evil intent to harm. Regarding the issue recklessness, "[a] defendant acts recklessly when 'his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary to make his conduct negligent.'" Phillips, 883 A.2d at 445 (citation omitted). Here, evidence of recklessness is lacking. As indicated above, Officer Skaggs applied his brakes, slowed down, attempted to clear the intersection, utilized emergency lights and sirens, and tried to avoid the collision, and yet Plaintiff failed to stop or yield for his vehicle proceeding directly into his path. Furthermore, Officer Skaggs believed that he was operating safely and under control at the time. His actions were not "so outrageous that that the risk of harm here can be said to be 'substantially greater' than that which would be posed by negligent conduct" Phillips, 883 A.2d at 448, especially considering Section 3105 permitted him to proceed past red traffic signals. Therefore, Officer Skaggs requests the entry of summary judgment in his favor with respect to Plaintiff's request for punitive damages in Count I. Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 24 of 25 25 IV. CONCLUSION For the foregoing reasons, Defendant Municipality of Monroeville respectfully requests that this Honorable Court grant Defendants' Motion for Summary Judgment and enter judgment in its favor with respect to Plaintiff's Section 1983 municipal liability or Monell claim in Count V, and decline to exercise jurisdiction over the remaining state law claims. Alternatively, Monroeville requests the entry of summary judgment in its favor on Count III for Negligence, and, if necessary, on Plaintiff's request for punitive damages in Count II. Similarly, Defendant Jeremy Skaggs requests that this Honorable Court grant Defendants' Motion for Summary Judgment and enter summary judgment in his favor on Plaintiff's request for punitive damages against him pursuant to Count I. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: s/ Christian D. Marquis CHRISTIAN D. MARQUIS, ESQUIRE PA ID #85070 Counsel for Defendants, Jeremy Skaggs and Municipality of Monroeville US Steel Tower, Suite 2900 600 Grant Street Pittsburgh, PA 15219 (412) 803-1140 // (412) 803-1188 fax cdmarquis@mdwcg.com LEGAL/110195958.v1 Case 2:16-cv-01403-MAK Document 70 Filed 05/17/17 Page 25 of 25