Opinion
Civil Action 2:19-cv-934
04-18-2022
DAVID DALE MCCUE Plaintiff, v. TOWNSHIP OF HANOVER, HANOVER TOWNSHIP POLICE DEPARTMENT, MICHAEL DHANSE, STAN HENRY, JOCELYN RUSE, and TINA BLACK Defendants.
Colville District Judge
REPORT AND RECOMMENDATIONECF No. 107
LISA PUPO LENIHAN United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Motion for Summary Judgment filed by Defendants Michael Dhanse, Hanover Township Police Department, Stan Henry, and Township of Hanover (ECF No. 107) be denied. The Motion for Summary Judgment on the issue of qualified immunity should be denied without prejudice.
II. REPORT
A. FACTS
The follow facts are taken from the parties' Concise Statements of Material Fact and Responses thereto (ECF Nos. 108, 113 & 119-1), and record evidence in the Appendices at ECF Nos. 108 & 114.,
At ECF Nos. 122 & 123, the Court granted Plaintiff's Motion to Strike the section of Defendants' Reply Brief entitled “Controverting Facts Post Response” for failure to comply with Rule 56 of the Local Rules for the Western District of Pennsylvania (Civil).
The Court uses the pagination generated by the CM/ECF docketing system.
On August 6, 2017, Plaintiff, David Dale McCue (“Plaintiff” or “McCue”), a police officer employed in West Mifflin, was at the Key Bank Pavilion (“KBP”) in Defendant Hanover Township, Pennsylvania (“the Township”). ECF Nos. 108 & 113 ¶ 13. Plaintiff came to KBP for a concert on a private van/bus with others including Defendants Jocelyn Ruse (“Ruse”) and Defendant Tina Black (“Black”). Id. ¶ 14. Plaintiff drank alcohol on the bus and after arriving at KBP but was not intoxicated. Id. ¶¶ 17-18. Defendant Ruse was also drinking and became severely intoxicated. Id. ¶ 19.
The parties dispute what happened next. According to Plaintiff and five witnesses, he was attacked by Defendant Ruse and then Black. ECF No. 113 ¶¶ 20-21. According to Defendant Dhanse, he observed Plaintiff step forward, and observed a blonde woman be lifted off the ground and then suddenly go down to the ground. ECF No. 108 ¶ 23. Dhanse further observed three individuals, identified as off-duty police officers, running towards Plaintiff. Dhanse also approached Plaintiff. Dhanse was initially concerned about the three officers running towards Plaintiff but then believed they were going to assist him and Officer Allen who was with him. ECF No. 108 ¶¶ 24-26. Dhanse further states that he did a leg sweep maneuver, took Plaintiff to the ground and handcuffed him. ECF No. 108 ¶ 27. Dhanse states that the off-duty police officers assisted Dhanse in getting Plaintiff's second arm handcuffed, and then helped Dhanse to get Plaintiff to his feet. ECF No. 108 ¶ 28. Dhanse did not ask the off-duty police officers to remain at the scene. He later tried to find them, but was unable to do so. ECF No. 108 ¶ 30.
According to Plaintiff and his five witnesses, Dhanse's version of events is a fabrication. ECF No. 113¶ 22. According to Plaintiff and his witnesses, he was violently tackled to the ground by the off-duty police officers who assaulted him for a minute while Dhanse stood by and did not intervene. ECF No. 113 ¶ 27. Plaintiff states that although he agrees that Dhanse failed to have the off-duty officers remain at the scene, he had communications with and walked with them after he was assaulted. ECF No. 113 ¶ 30. Yet, he and Defendant Officer in Charge Henry, who arrived at the scene in response to Dhanse's radio call, were unable to locate the off-duty police officers. ECF Nos. 108 & 113 ¶¶ 66 & 72. The off-duty officers have never been identified despite Plaintiff's best efforts and these Defendant “John Does” were terminated from this civil action. ECF Nos. 99 & 100.
The five witnesses confirm that any contact Plaintiff had with Defendants Ruse and Black was from a defensive posture. Plaintiff states that Dhanse refused to take statements from the five witnesses on the date of the incident even though witness statement forms were in the ATV Dhanse was driving. These five witnesses corroborated Plaintiff's version of events.
At the scene, Defendant Henry provided statement forms to witnesses Gary Smith and Amanda Andrews, both of whom inculpated the Plaintiff. Andrews admits that she was highly intoxicated when she wrote her statement, and that she was on the phone the entire time she observed the incident. Andrews Dep., ECF No. 114-9 at 9, 12. Smith also testified that he was intoxicated when he wrote his statement. Smith Dep., ECF No. 114-20 at 5. Smith testified that the police interviewed him and Andrews for approximately 40 minutes as they were writing their respective statements and that the police instructed Smith to cross certain verbiage out of Smith's statement. ECF Nos. 108 & 113 ¶ 74. Smith later recanted his statement to the Township Police before Plaintiff's preliminary hearing, clarifying that he did not actually see Plaintiff strike anyone, but this information was not disclosed to Plaintiff or his criminal defense counsel. ECF No. 113, p.91 ¶ 115. Andrews also retracted her statement that she actually saw McCue strike anyone. See generally Andrews Dep., ECF No. 114-9.
While at the KBP police compound after the incident, Plaintiff provided a statement about the incident, received additional statement forms, and then left the compound. McCue was unsupervised while at the compound. ECF Nos. 108 & 113 ¶ 78. McCue was not charged with any crime on the night of the incident, and he is not included in the arrest logs kept at KBP for each concert. ECF No. 113, p.87 ¶¶ 81-83. Ruse and Black were both charged with disorderly conduct. Id., p. 91 ¶ 112. The charges against Ruse and Black were dropped and Ruse credits Defendant Henry with having the charges dropped against her. Id.
Defendant Officer in Charge Henry received a statement from witness Jason Probst via text message on the date of the incident, August 6, 2017. Henry, however, did not inform Dhanse about the text message that evening, and placed the text message in Plaintiff's file, at the latest, on August 11, 2017, the same day that Dhanse drafted criminal charges against McCue. Dhanse did not include the exculpatory information from the Probst text message in the charges, even though he and Henry discussed the Probst text before August 11, 2017. ECF Nos. 108 & 113 ¶¶ 79 & 83. The other witness statements that corroborated Plaintiff's version of events were faxed to the Hanover police station on August 10, 2017. Henry testified that these statements would have been taken to the KBP to be placed in the case file on August 11, 2017, the day Dhanse drafted the charges. ECF Nos. 108 & 113 ¶ 81.
The parties appear to dispute when the incident report was drafted, and what witness statements were available to Dhanse. Defendants assert that Dhanse began working on the incident report toward the end of the evening on August 6, 2017. Plaintiff contends that the computer-generated complaint number on the police report indicates that it was started on August 11, 2017. ECF No. 113 ¶ 86. Defendants contend that Dhanse only had access to and received statements from Plaintiff, Andrews, and Smith. Plaintiff indicates that the four exculpatory statements and Probst text would have been in the file at KBP by August 11, 2017, when Dhanse drafted the charges against Plaintiff. In addition, Dhanse and Henry discussed the Probst text before August 11th.
Almost a week after the concert, on August 11, 2017, Dhanse filled out a Criminal Complaint against McCue charging him with Simple Assault, Harassment, and Disorderly Conduct, which the Magistrate signed on August 15, 2017. ECF No. 113, p.85 ¶¶ 68-69. A charge for resisting arrest was added at the preliminary hearing, based only on information received from Dhanse. Id. ¶ 71. In May 2019, nearly two years later, all charges were dismissed by the Washington County District Attorney's Office. ECF No. 113, p.86 ¶ 75; ECF No. 114-51 (Commonwealth's Petition for Nolle Prosse).
B. LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (a) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:
[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.... [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.Id. at 249-50 (internal citations omitted).
C. ANALYSIS
Section 1983 of the Civil Rights Act provides as follows:
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 any other person within 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, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
1. Section 1983 Failure to Intervene Claim against Defendant Dhanse
In support of their Motion for Summary Judgment on the failure to intervene claim against Dhanse, Defendants argue that Plaintiff “has not shown that Officer Dhanse was present for an alleged constitutional violation and had a realistic and reasonable opportunity to intervene ....” Defendants' Brief in Support of Summary Judgment, ECF No. 109 at 6.
In order to establish a claim for failure to intervene in another's use of excessive force, a plaintiff must show that: (1) the defendant failed or refused to intervene when a constitutional violation took place in his or her presence or with his or her knowledge; and (2) there was “a realistic and reasonable opportunity to intervene.” Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002); McCullough v. Miller, No. 06-514, 2008 WL 4361254, at *9 (W.D. Pa. Sept. 24, 2008). In determining whether an opportunity to intervene existed, courts consider many factors, “including the temporal length of the alleged assault, the proximity of the non-intervening officer to the alleged assault, the ability of the non-intervening officer to perceive and/or hear the alleged assault, etc.” McCullough, 2008 WL 4361254, at *9 (citing Swinyer v. Cole, No. C04-5348, 2006 WL 1874100, at *3 (W.D. Wash. July 6, 2006); Mitchell v. James, No. 4:04CV1068, 2006 WL 212214, at *5 (E.D. Mo. Jan. 27, 2006)).
Plaintiff has come forward with record evidence to raise a disputed issue of material fact as to whether Officer Dhanse observed the off-duty police officers assaulting Plaintiff. Defendants rely on the Plaintiff's deposition testimony that he was not able to see Officer Dhanse when the off-duty police officers were violently assaulting him. McCue Dep., ECF No. 108-3 at 46-47. Plaintiff, however, has come forward with record evidence from Dhanse that he was present for all contact that the off-duty police officers had with Plaintiff. Dhanse Dep., ECF No. 114-7 at 8. Plaintiff also testified that he was on the ground being struck for about a minute from the time he was tackled by the off-duty police officers until the time he stood up. McCue Dep., ECF No. 108-3 at 47. Dhanse would have had a reasonable opportunity to intervene during this time when the off-duty police officers tackled Plaintiff, ground his face into the gravel, and kicked and punched him in the torso. Therefore, Defendants' Motion for Summary Judgment on the issue of failure to intervene against Dhanse should be denied.
Defendant Dhanse argues that he is entitled to qualified immunity for claims against him in his individual capacity. A defendant has the burden to establish that he or she is entitled to qualified immunity. Burns v. Pa. Dept. of Corrections, 642 F.3d 163, 176 (3d Cir. 2011).
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity operates to ensure that, before they are subjected to suit, government officials are put on notice that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
In determining whether qualified immunity applies, the courts conduct a two-pronged inquiry. Pearson, 555 U.S. at 232; Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must determine “whether the facts that the plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end ....” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). If, however, the plaintiff can establish a constitutional violation, then the court must proceed to the second prong and determine “‘whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.'” Spady, 800 F.3d at 637 (quoting Pearson, 555 U.S. at 232). “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “This is an objective inquiry, to be decided by the court as a matter of law.” Doe v. Groody, 361 F.3d 232, 238 (3d Cir. 2004). In conducting this analysis, courts have the discretion to decide which of the two prongs should be addressed first based on the circumstances of a particular case. Pearson, 555 U.S. at 236.
A qualified immunity analysis on summary judgment requires that the Court construe any disputed material facts in favor of the nonmoving party to determine whether the nonmoving party has shown a violation of a specific constitutional right. See Spady, 800 F.3d at 637. But the analysis may not end there. The Court “may not deny a summary judgment motion premised on qualified immunity without deciding that the right in question was clearly established at the time of the alleged wrongdoing.” Id. at 637 n.4. Therefore, “while issues of fact may preclude a definitive finding on the question of whether the plaintiff's rights have been violated, the court must nonetheless decide whether the right at issue was clearly established.” Id. And “[a]lthough qualified immunity is a question of law determined by the Court, when qualified immunity depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006) (citing Johnson v. Jones, 515 U.S. 304, 313 (1995) (qualified immunity may turn on disputed issues of fact where the law in issue was clearly established); Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (“While the qualified immunity defense is frequently determined by courts as a matter of law, a jury should decide disputed factual issues relevant to that determination.”)).
If the right at issue was not clearly established at the time of the constitutional violation, then a court may find qualified immunity applies even though a record contains disputed issues of material fact. See Pearson, 555 U.S. at 236 (court has discretion to decide which of the two prongs should be addressed first based on the circumstances of a case).
In making his argument on qualified immunity, Dhanse construes the facts in his favor rather than in favor of the nonmoving Plaintiff as required on summary judgment. Plaintiff, however, directs the Court to record evidence that Dhanse was present at the time of the off-duty officers' assault and that the assault lasted for a minute. At the time of the injuries in this case, and in light of the events that form the basis of Plaintiff's failure to intervene claim, it was well established that an officer's failure to intervene in an unconstitutional assault by another officer can be the basis for § 1983 liability if the officer had a reasonable opportunity to intervene. See Smith, 293 F.3d at 650, 652. Any reasonable officer would know that an officer cannot stand by while another officer violently assaults a victim who is not resisting. Therefore, the Court should deny summary judgment without prejudice on Defendant Dhanse's claim of qualified immunity.
Denial of summary judgment on the issue of qualified immunity should be without prejudice because of the innumerable disputed issues of material fact on this record where the law in issue was clearly established at the time of the alleged constitutional violation. These disputed issues must be decided by a jury. See Monteiro, 436 F.3d at 405.
2. Section § 1983 claims of Falsification of Evidence against Defendants Dhanse and Henry
Defendants further argue that they are entitled to judgment as a matter of law on the claims of falsification of evidence against Defendants Dhanse and Henry because Dhanse's personal observation that he saw Plaintiff assault a woman, coupled with witness statements, supported a finding of probable cause.
In order to prove a claim for falsification of evidence, a plaintiff, whether he be a convicted or acquitted criminal defendant, must show that there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged. Black v. Montgomery Cnty., 835 F.3d 358, 371 (3d Cir. 2016). The plaintiff must come forward with evidence that the fabricated evidence “was so significant that it could have affected the outcome of the criminal case.” Id. at 372 (quoting Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014)). In addition, there must be “persuasive evidence supporting a conclusion that the proponents of the evidence” were aware that evidence was false or offered in bad faith. Id. (quoting Halsey, 750 F.3d at 295). Contrary to Defendants' moving argument, probable cause is not at issue in a claim for falsification of evidence.
Dhanse claims that he saw Plaintiff assault a woman and that certain witnesses agree with his version of events. Plaintiff, however, comes forward with evidence that Dhanse provided false testimony and created a false version of events to protect himself after he allowed Plaintiff to be violently assaulted by the off-duty officers and after Plaintiff threated a civil action against Dhanse. The Court, on summary judgment, must view the record in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor. The following record evidence, taken in a light most favorable to the Plaintiff, suggests that a jury could conclude that Dhanse's version of events was fabricated.
First, Dhanse was the only source of information that McCue violently resisted arrest, providing the basis for that charge at the preliminary hearing. Dhanse Dep., ECF No. 114-7 at 35. No other witnesses indicated that McCue resisted arrest and five (5) witnesses indicated that he did not resist at all.
Second, the arrest logs at KBP for August 6, 2017, do not list Plaintiff, although they list others who were arrested that day. Henry Dep., ECF No. 114-1 at 46-51 & Exhs. 10, 11, 13. A reasonable jury could conclude that if Dhanse's version of events were true, McCue's name would have been on the arrest logs.
Third, Dhanse testified that he used force on McCue because McCue violently resisted arrest. Dhanse Dep., ECF No. 114-7 at 18-19. Yet, Dhanse did not fill out a “use of force” form in accordance with the KBP Procedures Manual, even though he knew they were available. Id. at 16-18. A reasonable jury could conclude that Dhanse did not complete the form because McCue did not resist arrest, and therefore, any use of force was unnecessary.
Next, Plaintiff comes forward with record evidence that he was not immediately arrested or taken to the county jail even though Dhanse testified that he violently assaulted a woman and violently resisted arrest. Instead, record evidence reflects that Dhanse drove McCue uncuffed, on an ATV to the police trailer to make a statement where McCue was left unsupervised. ECF No. 113 at pp.87-88 & ECF No. 119-1 ¶¶ 87-90. A reasonable jury could conclude that this divergence from proper police procedures supports Plaintiff's argument that Dhanse's version of events was fabricated.
Plaintiff also points to record evidence that Dhanse did not get identifying information from the off-duty police officers who violently assaulted McCue, even though he conversed with them as they walked away after having assaulted McCue. Dhanse Dep., ECF No. 114-7 at 1214. Plaintiff argues that a reasonable jury could conclude that Dhanse chose not to inquire about their identities because of what they did to Plaintiff and because they knew Dhanse did not intervene.
In addition, the Plaintiff directs the Court to the fact that Dhanse and Henry both testified that on the evening of August 6, 2017, Dhanse began to write up the police report that ultimately led to the charges against him. The computer-generated police report, however, indicates that it was started on August 11, 2017, not on August 6th. A handwritten form from the Township Police at KBP also is dated August 11th. A jury could find this discrepancy significant in determining whether Dhanse's version of events was fabricated.
Importantly, Dhanse refused to provide statement forms to McCue's witnesses on the evening of August 6th even though the forms were located in the ATV that Dhanse was driving. Defendant Henry testified that those forms should have been provided. Henry Dep., ECF No. 114-1 at 31-32; Dhanse Dep., ECF No. 114-7 at 44.
Moreover, exculpatory statements from five (5) witnesses were faxed to the Hanover Township Police Department on August 10th, and according to Defendant Henry, should have been taken to the KBP police facility and placed in the incident file there by August 11th. Dhanse worked a concert at KBP on August 11th; and worked on his report and charges that evening, but the exculpatory witness statements were not considered or included in the charges.
The police report under Dhanse's badge number excised the portion of McCue's statement where he discusses the assault on him by the off-duty police officers, yet the other witness statements are included in the police report verbatim. A reasonable jury could consider this discrepancy in determining whether Dhanse's version of events was fabricated.
Black's handwritten statement does not indicate that she was choked or picked up by the throat, but at the preliminary hearing, after meeting with others including Dhanse, she testified consistently with Dhanse's version of events.
Finally, prior to the preliminary hearing, one of the inculpating witnesses, Gary Smith, told a representative of the Hanover Township Police that he did not actually see McCue punch anyone. Smith's recantation was not communicated to Plaintiff or his criminal counsel. See Temple Decl., ECF No. 114-49 ¶ 5.
This record evidence, considered in its totality, could support a reasonable jury's conclusion that Dhanse fabricated his version of events to protect himself from liability for not intervening in the violent assault by the off-duty police officers, and in response to McCue's threat that he was going to file a civil action. Therefore, summary judgment should be denied as to the falsification of evidence claim against Dhanse.
Similarly, summary judgment should be denied on Plaintiff's claim for falsification of evidence against Henry. Plaintiff has come forward with record evidence which suggests that Henry coached Black into making false assertions in her statement to the police. Defendant Ruse testified in detail that Henry took her and Black's statements (Ruse Dep., ECF No. 114-13 at 1622) even though Henry testified that he did not remember if he took statements from either of them. Henry Dep., ECF No. 114-1 at 43. Ruse further testified that after she and Black had completed their statements, Henry questioned them about whether they heard McCue identify himself as a police officer or Lieutenant, the latter of which is included in Dhanse's police report even though it is untrue. Neither Black nor Ruse had included this in their respective statements. Ruse Dep., ECF No. 114-13 at 7-8, 19-20. Black testified that she did not recall McCue identifying himself as a Lieutenant and she did not recall writing that she did. Black Dep., ECF No. 114-12 at 7-10. But Black's written statement taken by Henry is written in two different colors of ink with apparent differences in handwriting, and includes that McCue claimed to be a Lieutenant. ECF No. 114-28. In addition, Henry reviewed and approved the charges filed by Dhanse even though he personally received Probst's exculpatory text message and was aware of other exculpatory statements. Henry Dep., ECF No. 114-1 at 33-38, 60-68, 74-75.
These irregularities led to the filing of criminal charges against Plaintiff by Dhanse and the approval of those charges by Henry. These actions and omissions by Dhanse and Henry were significant enough that they could have had affected the outcome of the criminal case. Finally, the very nature of these acts and omissions indicates that Dhanse and Henry were aware that the evidence was false or fabricated. Therefore, summary judgment on the issue of falsification of evidence should be denied as to Dhanse and Henry.
Likewise, qualified immunity should be denied without prejudice as to Dhanse and Henry. Taken in the light most favorable to Plaintiff McCue, Plaintiff has come forward with the above evidence to show that Dhanse and Henry's conduct involving police procedure irregularities, tampering with witness statements, failing to consider some witness statements while crediting others and providing their own false statements, violated Plaintiff's Fourteenth Amendment due process protection against the falsification of evidence. This right was well established by 2017 such that any reasonable officer would know that the falsification/fabrication of evidence leading to the filing of criminal charges against a criminal defendant would be a violation of that defendant's constitutional rights. See Black v. Montgomery Cnty., 835 F.3d 358, 368-72 (3d Cir. 2016) (plaintiff may pursue a fabricated evidence claim against state actors under the Due Process Clause of the Fourteenth Amendment even if never criminally convicted); Halsey v. Pfeiffer, 750 F.3d 273, 279 (3d Cir. 2014).
3. Section 1983 False Arrest and Malicious Prosecution claims against
Defendants Dhanse and Henry
Next, Defendants argue that summary judgment should be granted on the § 1983 claims for false arrest and malicious prosecution against Defendants Dhanse and Henry because probable cause existed to arrest and charge Plaintiff for the events of August 6, 2017.
The Fourth Amendment's prohibition against unreasonable seizures protects individuals from arrest without probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). “Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). In determining whether probable cause exists to support an arrest, the analysis must be based upon the totality of circumstances including “the objective facts available to the officers at the time of the arrest . . . .” Sharrar v. Felsing, 128 F.3d 810, 818 (quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984)). Subjective intentions of police officers are irrelevant to a Fourth Amendment probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996). Although generally a question for the jury in a § 1983 claim, a district court may find the existence of probable cause as a matter of law on summary judgment, but only if the evidence, viewed most favorably to the plaintiff, would reasonably support a finding that probable cause to support the arrest did exist. See Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998); Estate of Smith v. Marasco, 318 F.3d 497, 514, 514 (3d Cir. 2003).
With regard to the claim of false arrest, Plaintiff has come forward with evidence that Dhanse's version of events was fabricated in an effort to conceal the fact that he did not intervene as off-duty officers violently assaulted Plaintiff, and because Plaintiff threatened to file a civil lawsuit. Whether Dhanse fabricated his version of events is an issue of material fact going to the existence of probable cause for arrest. This disputed issue must be decided by a jury.
Relatedly, the absence of probable cause is a necessary element to a malicious prosecution claim premised on the Fourth Amendment. In order to prove a § 1983 malicious prosecution claim, a plaintiff must show that the defendant initiated a criminal proceeding; the criminal proceeding ended in plaintiff's favor; defendant initiated the proceeding without probable cause; defendant acted maliciously or for a purpose unrelated to bringing the plaintiff to justice; and plaintiff suffered a deprivation of liberty consistent with the concept of a seizure as a consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007), quoted in Allen v. New Jersey State Police, 974 F.3d 497, 502 (3d Cir. 2020).
Plaintiff has come forward with evidence raising disputed issues of material fact as to whether Dhanse had probable cause to initiate the criminal proceeding. As noted by Plaintiff, “arresting officers must consider plainly exculpatory evidence in addition to inculpatory evidence.” Harvard v. Cesnalis, 973 F.3d 190, 200 (3d Cir. 2020) (citing Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000)). “It certainly is inappropriate for a court to grant a defendant officer's motion for summary judgment . . . if there are underlying factual disputes bearing on the issue [of probable cause] or if ‘reasonable minds could differ' on whether he had probable cause for the institution of the criminal proceedings based on the information available to him.” Halsey v. Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014) (citing Dreary v. Three un-Named Police Officers, 746 F.2d 185, 192 (3d Cir. 1984)).
Here, in evaluating an affidavit of probable cause on summary judgment, the Court must view the facts in a light most favorable to the nonmoving party. Therefore, the Court looks to whether Dhanse “knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions that created a falsehood in applying for the warrant.” Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017). With regard to Dhanse's personal observations, the Court on summary judgment must accept any conflicting record evidence as to what Dhanse observed. See Brockington v. City of Philadelphia, 354 F.Supp.2d 563 (E.D. Pa. 2005) (summary judgment denied where Plaintiff's version of events differed from officer's). For observations of those other than Dhanse, misrepresentations are made with reckless disregard for the truth if they “distort the truth.” Andrews, 853 F.3d at 698. Omissions are made with reckless disregard for the truth if the fact omitted “was the kind of thing a judge would wish to know.” Wilson, 212 F.3d at 783. Finally, Defendants cannot rely on the fact that the district magistrate found probable cause if the information related to him/her was false or fabricated, and omitted information that “a judge would wish to know.” Id. at 783, 786-87.
With regard to Dhanse's personal observations, the summary judgment record is replete with disputed issues of material fact. Dhanse's version of what he observed (McCue grabbed Ruse around the throat, lifted her off the ground, then threw her to the ground and violently resisted arrest) and McCue's account of what he experienced are diametrically opposed and disputed by five witness statements: Jason Probst; Tammie Giacometti; Charles Bosang; Tiffany Yurinko; and Brian Yurinko. ECF No. 114-47 at 1-10.
Facts omitted by Dhanse include the off-duty police officers violently assaulting McCue as he held his hands up and was calling for police. The five witnesses stated that McCue had been attacked by two females (Defendants Ruse and Black), and all contact McCue had with the females was from defensive posturing. As discussed at length, supra at II.C.2., Plaintiff has come forward with disputed issues of material fact as to whether Dhanse had access to the five exculpatory witness statements before he submitted the charges on August 11, 2017, and before the charges were finalized on August 15, 2017. And Dhanse admitted to not reviewing the incident file at KBP which would have contained these statements before finalizing the charges. Dhanse Dep., ECF No. 114-7 at 28-29, 41-42. In light of the above, a reasonable jury could conclude that Dhanse's statement in the probable cause affidavit that “[a]ll third-party individuals stated that McCue punched Jaclyn Rosco [sic] and Tina Black with a closed fist” was a distortion of the truth made knowingly or with reckless disregard.
Importantly, Plaintiff was charged with simple assault pursuant to 18 Pa. Cons. Stat. Ann. § 2701 (a)(1) which requires that a defendant “intentionally, knowingly or recklessly” cause bodily injury to another; harassment pursuant to 18 Pa. Cons. Stat. Ann. § 2709, which requires that a defendant act with the “intent to harass, annoy or alarm another”; and disorderly conduct pursuant to 18 Pa. Cons. Stat. Ann. § 5503, which requires a defendant to act “with intent to cause public inconvenience, annoyance or alarm, or recklessly create[e] a risk thereof.” Construing all facts in favor of the Plaintiff and all reasonable inferences drawn therefrom, a reasonable jury could conclude that Plaintiff was acting defensively, thereby negating the necessary element of intent from all three offenses. At the preliminary hearing, the charge of resisting arrest pursuant to 18 Pa. Cons. Stat. Ann. § 5104 was added, even though no witnesses corroborated Dhanse's version of events that McCue resisted arrest.
Therefore, on this record, the issue of whether the criminal proceeding was initiated without probable cause is a question for the jury. Summary judgment should be denied on Plaintiff's false arrest and malicious prosecution claims against Dhanse.
Defendants also argue that Plaintiff was not seized for purposes of the Fourth Amendment, as required by the final element of a malicious prosecution claim. Plaintiff, however, was required to appear at approximately six (6) court proceedings or be subject to possible arrest, provide his current address, report any change in address and was fingerprinted. See Black v. Montgomery Cnty., 835 F.3d 358, 362-67 (3d Cir. 2016) (malicious prosecution plaintiff seized where, although never incarcerated, was required to attend court hearings, and was fingerprinted); Gallo v. City of Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998) (requirements that arrestee attend all court hearings and restrictions on travel constituted seizure for purposes of § 1983 malicious prosecution claim).
Likewise, summary judgment should be denied on these claims against Henry. “[A] supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Record evidence reflects that Henry personally reviewed and approved the charges against McCue even though he personally received the exculpatory text message from Probst and was aware of other exculpatory statements. Henry Dep., ECF No. 1141 at 33-38, 60-68, 74-75. He approved Dhanse's affidavit that excluded exculpatory evidence, and which falsely stated that all witnesses said McCue punched Ruse and Black with a closed fist. Clearly, Plaintiff has come forward with evidence to raise disputed issues of material fact as to whether Henry, as Dhanse's supervisor, participated/acquiesced in the violation of Plaintiff's Fourth Amendment rights.
On this record, summary judgment on the claims against Henry for malicious prosecution and false arrest should be denied.
With regard to the qualified immunity of Dhanse on the claim of false arrest, the Court must construe all disputed facts in favor of McCue at this step of the qualified immunity analysis. Under these facts, Dhanse violated Plaintiff's protections against false arrest when he fabricated his version of events in an attempt to cover up his own failure to intervene and protect against McCue's threatened civil action. With regard to second step of the qualified immunity analysis, the law concerning false arrest was clearly established such that a reasonable officer under these circumstances would know he was violating Plaintiff's rights. See Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) (qualified immunity denied where defendant acted with reckless disregard for the truth or falsified information because right was clearly established).
With regard to the qualified immunity of Dhanse on the claim of malicious prosecution, the facts construed in favor of the Plaintiff likewise show that Dhanse omitted exculpatory information from the affidavit of probable cause and included information that was false. A reasonable officer in Dhanse's position would have known that his actions violated clearly settled law. See Lippay, 996 F.2d at 1504. With regard to the qualified immunity of Henry on the claims of false arrest and malicious prosecution, the facts construed in favor of Plaintiff show that Henry assisted Dhanse in arresting and filing criminal charges against Plaintiff without probable cause by not including evidence in the affidavit that he knew was exculpatory, by coaching Black in the issuing of her statement, and crediting statements of unreliable witnesses. A reasonable officer in Henry's supervisory role would have known that these actions violated clearly settled law in that he must have entertained serious doubts as to the truth of statements in the affidavit of probable cause he reviewed and had obvious reasons to doubt the accuracy of the information included. See Lippay, 996 F.2d at 1504; Andrews v. Scuilli, 853 F.3d 690, 705 (3d Cir. April 10, 2017) (no doubt that the right to be free from arrest except on probable cause was clearly established as was the right to be free from prosecutions on criminal charges that lack probable cause). Qualified immunity should be denied without prejudice.
4. Common Law Claims of Malicious Prosecution against Defendants Dhanse and Henry
Because the common law claim of malicious prosecution also requires the element of probable cause for arrest, summary judgment on the common law claims for malicious prosecution against Dhanse and Henry should also be denied. See supra discussion at II.C.3.
In addition, because Plaintiff has come forward with issues of material fact as to whether Henry and Dhanse acted with malice or willful misconduct, Henry and Dhanse may not avail themselves of immunity pursuant to 42 Pa. Cons. Stat. Ann. § 8545. See 42 Pa. Cons. Stat. Ann. § 8550 (abrogation of immunity for actions that constitute a crime, actual fraud, actual malice or willful misconduct).
5. Section 1983 and Common Law Conspiracy Claims against Dhanse and Henry
In support of their Motion for Summary Judgment on Plaintiff's claims for conspiracy, Defendants argue that Plaintiff has failed to produce evidence regarding a meeting of the minds between Dhanse and Henry to deny Plaintiff a federally protected right, and that they engaged in any particular act in furtherance of the conspiracy.
A plaintiff may establish a § 1983 conspiracy by showing that state actors reached an agreement to deny plaintiff his/her rights. Jutrowski, v. Twp. of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018). In the absence of direct proof of that agreement and concerted action, these elements may be shown through circumstantial evidence. Id. The Jutrowski court noted that in the context of an alleged conspiracy between police officers, circumstantial evidence may include conversations about the incident, distorted versions or stories that emerge during the relevant time, and irregularities in the investigations into the incident. Id. The Jutrowski court further noted that material omissions in police reports, and omissions specifically related to infliction of an injury or use of force may also provide circumstantial evidence of collusion. Id. at 296.
Here, Plaintiff has come forward with evidence to raise disputed issues of material fact as to whether Dhanse and Henry agreed to violate Plaintiff's constitutional rights. Much of this evidence was discussed supra at III.C. 2. & 3. involving material facts raised by Plaintiff against Dhanse and Henry concerning his claims for false arrest, malicious prosecution, and falsification of evidence. Examples of record evidence raising issues of material fact as to agreement and concerted action to violate Plaintiff's rights already discussed at length include the following: 1) the police report excised the portion of McCue's statement about the assault; 2) Dhanse's allegation that McCue resisted arrest is contradicted by six (6) witnesses but the charge was still included in the criminal complaint reviewed by Henry and only added at the preliminary hearing; 3) McCue threated to file suit because he was assaulted and because Dhanse did not intervene, providing the impetus for Dhanse to coverup what actually occurred when the off-duty officers violently assaulted McCue; 4) Dhanse walked with and spoke to the off-duty police officers after the incident but did not obtain their names; 5) the required use of force form was not filled out by Dhanse even though Henry testified that it should have been; 6) the exculpatory information from Probst and other witnesses was omitted from the probable cause affidavit drafted by Dhanse and reviewed and approved by Henry; 7) Henry coached Black to fabricate information in her statement; 8) the charges against Black and Ruse were dropped and Ruse attributes the dropping of charges against her to Henry; and 9) the arrest logs from KBP for August 6, 2017 do not list McCue, and the video of McCue at the police trailer shows him being treated in a manner inconsistent with Dhanse's version of events.
Plaintiff has come forward with record evidence to raise disputed issues of fact as to whether Dhanse and Henry engaged in a conspiracy to deny McCue his federally protected rights. Summary judgement should be denied on the conspiracy claims.
Similarly, qualified immunity should be denied without prejudice on the conspiracy claim. Taking Plaintiff's version of the facts as true and affording Plaintiff every favorable inference therefrom, Plaintiff shows that Dhanse and Henry engaged in a conspiracy to violate Plaintiff's constitutional rights. Irregularities in police procedures concerning required use of force forms, tampering with witness statements, and omitting exculpatory witness statements from the affidavit of probable cause, all go to concerted actions by and between Dhanse and Henry to deny Plaintiff his protected rights. As discussed above, these rights were clearly established at the time of the events in issue and would have been known to a reasonable officer under the circumstances in which Dhanse and Henry found themselves. Therefore, qualified immunity should be denied without prejudice as to Dhanse and Henry on Plaintiff's § 1983 conspiracy claim.
With regard to Plaintiff's common law conspiracy claim, Dhanse and Henry may not afford themselves of immunity for this alleged willful misconduct. See 42 Pa. Cons. Stat. Ann. § 8550.
6. Monell Claims
In support of their Motion for Summary Judgment on Plaintiff's Monell claims, Defendants argue the following: 1) any Monell claims related to excessive force must fail because the only claims for excessive force were against the former John Doe off-duty police officers who have now been dismissed from this action for failure to identify these officers; 2) Chief Henry was not at the scene when Plaintiff was allegedly assaulted by the off-duty police officers so was not personally involved in any alleged constitutional violation; 3) a single decision will rarely be the basis of municipal liability and only where the decision maker is a municipal policy maker, and Plaintiff has not alleged that there are express policies of failing to properly train the seasonal officers or that the seasonal officers are used to generate revenue through improper arrest of, and charges against, patrons at KBP; and 4) the Township employs officers who are required to attend state mandated training and who also receive additional training from the Township including submission of criminal complaints, non-traffic summary citations, use of force, and crowd control. ECF No. 109 at 19-23.
In Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978), the United States Supreme Court held that municipalities and other local governmental units are “persons” subject to liability under 42 U.S.C. § 1983. In so ruling, however, the Court declared that municipal liability may not be premised on the mere fact that the governmental unit employed the offending official, that is, through application of the doctrine of respondeat superior. Instead, the Court concluded that a governmental unit may be liable under § 1983 only when its “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.” Monell, 436 U.S. at 694. The “official policy” requirement distinguishes acts of the municipality from acts of employees of the municipality, thereby limiting liability to action for which the municipality is actually responsible. Id.
In finding municipal liability pursuant to § 1983, the plaintiff must identify the policy, custom or practice of the municipal defendant that results in the constitutional violation. Id. at 690-91. A municipal policy is made when a decision-maker issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895 F.2d at 1480. To establish municipal liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur and that the decision-maker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, Plaintiff must show a causal connection between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d Cir. 1990). That is, a plaintiff must demonstrate an “affirmative link” or “plausible nexus” between the custom or practice and the alleged constitutional deprivation. Bielevicz, 915 F.2d at 850-51.
The Court of Appeals for the Third Circuit set forth the standard for imposing liability against a supervisor under § 1983 in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989). Relying on the precepts set forth by the United States Supreme Court in City of Canton v. Harris, 489 U.S. 378 (1989), the Sample court noted that “a ‘person' is not the ‘moving force [behind] the constitutional violation' of a subordinate, unless that ‘person' -- whether a natural one or a municipality -- has exhibited deliberate indifference to the plight of the person deprived.” Sample, 885 F.2d at 1118 (internal citation omitted). The Court continued that in order to establish supervisory liability, the plaintiff must identify a specific supervisory practice or procedure that the defendant failed to employ, that the existing custom or practice without that specific practice or procedure created an unreasonable risk of harm, that defendant was aware that this unreasonable risk existed, that defendant was indifferent to that risk, and that plaintiff's harm resulted from defendant's failure to employ that supervisory practice or procedure. 885 F.2d at 1118. A plaintiff may also establish supervisory liability where the supervisor “participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Where a pattern of constitutionally cognizable injury is not presented by the record, a plaintiff may still prove § 1983 liability pursuant to a supervisory theory. That is, there may be cases where “the risk of constitutionally cognizable harm is so great and so obvious that the risk and the failure of supervisory officials to respond will alone support findings of the existence of an unreasonable risk, of knowledge of that unreasonable risk, and of indifference to it.” Id.
As to causation, the Sample court concluded as follows:
On remand, the district court should bear in mind that under the teachings of City of Canton it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did. The district court must insist that [plaintiff] identify specifically what it is that [defendant] failed to do that evidences his deliberate indifference. Only in the context of a specific defalcation on the part of the supervisory official can the court assess whether the official's conduct evidenced deliberate indifference and whether there is a close causal relationship between the “identified deficiency” and
the “ultimate injury.”Sample, 885 F.2d at 1118.
Here, Plaintiff comes forward with record evidence relating to his Monell theories of liability. Specifically, Plaintiff comes forward with evidence concerning the Township's practice of hiring the summer police force, and the Township/Henry's failure to train that police force. Record evidence reflects that in the summer months, the Township Police Department hires an addition 40 seasonal officers to work part-time, increasing the size of the force by approximately ten times. The seasonal officers receive no training that is specific to working with large crowds and intoxicated persons. Henry Dep., ECF No. 114-1 at 13-14. The officers do receive a two-day training seminar as to the use of force, but that training addresses physically how to use force and not how to avoid the unnecessary use of force. Declaration of Tim Kreger, ECF No. 114-4 at 2-3. Moreover, there is no intermediate command structure at KBP, such as sergeants or lieutenants, resulting in a police force that was not properly supervised. That is, the seasonal police force “did what it wanted to do at a given concert.” Id. at 3. In light of the situations that these seasonal officers would surely encounter, a jury could find that the need for more or different training was so obvious that the Township and Henry could be said to be deliberately indifferent to the rights of those who attended events at KBP. A jury could further conclude that it was this lack of training that led to the constitutional violations allegedly sustained by Plaintiff.
Plaintiff also comes forward with evidence that the Township used the summer police force to generate revenues through improper arrests of, and charges against, KBP patrons. Plaintiff comes forward with evidence of a history of lawsuits that demonstrate a history of “overcharging” individuals in an attempt to force pleas to lesser charges from individuals, and as exemplified by the allegations here, to cover up police misconduct such as the use of excessive force. Plaintiffs point to five lawsuits that included claims for false arrest or malicious prosecution, with those charges being dropped in exchange for disorderly conduct pleas.
Plaintiff also comes forward with evidence as to the motivation for this conduct: “On a yearly basis, approximately 85 % of the revenue raised from fees related to summons and arrests comes from KBP-related summons and arrest, amounting to approximately $650,000 between 2013 and 2019.” ECF Nos. 113 at p. 80 & 119-1 ¶ 17; see also ¶¶ 16, 18-20, 22-24. A jury could conclude that the Township and Henry were aware of similar unlawful conduct in the past, and failed to take precautions against future violations, eventually resulting in the alleged violations of Plaintiff's constitutional rights.
Therefore, it is recommended that Defendants' Motion for Summary Judgment on the issue of Monell liability be denied.
III. CONCLUSION
For the above reasons, it is respectfully recommended that the Motion for Summary Judgment filed by Defendants Michael Dhanse, Hanover Township Police Department, Stan Henry, and Township of Hanover (ECF No. 107) be denied. It is further recommended that he Motion for Summary Judgment on the issue of qualified immunity should be denied without prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.