Damiani v. Duffy

277 F.Supp.3d 692

Pablo A. DAMIANI, Plaintiff,

v.Detective DUFFY, et al., Defendants.

Civ. No. 12–1637–RGA

United States District Court, D. Delaware.

Signed October 4, 2017

Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Detective Sean Duffy, Gary Potts, Daniel Grassi, Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk, Ronald Kline, Corey Godek, Detective Jack Tsai, Detective Thomas Rhoades, Detective John Glenn, Rob Kracyla, James Kelly, Scott Galbreath, and Alfred Parton.

David C. Weiss, Acting United States Attorney, and Jennifer Lynne Hall, Assistant United States Attorney, Wilmington, Delaware. Counsel for Defendant Casey Bouldin.

Rosamaria Tassone–DiNardo, Esquire, City of Wilmington Law Department, Wilmington, Delaware. Counsel for Defendant Detective Stephen Morrissey.

MEMORANDUM OPINION

ANDREWS, U.S. District JudgePlaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).¹ He also raises supplemental State law claims. He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 7). Plaintiff raises excessive force and failure to protect claims against Defendants. Before the Court are Defendants' Motions for Summary Judgment. (D.I. 261, 264, 269).² Briefing on the motions is complete.

LEGAL AND FACTUAL BACKGROUND

Plaintiff commenced this action on December 4, 2012, alleging violations of his constitutional rights under 42 U.S.C. § 1983. (D.I. 2). The Court dismissed the original complaint, Plaintiff amended numerous times, and the matter proceeds on the Fourth Amended Complaint ("Amended Complaint"). (D.I. 214). Named defendants include New Castle County Police Department Detective Casey Bouldin, who was acting as a task force officer with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives; Wilmington Police Department Detective Morrissey, who was also assigned to the ATF task force; and State of Delaware employees Detective Duffy, Detective Gary Potts, Detective Daniel Grassi, Corporal Lano, Corporal Eric Daniels, Corporal John Dudzinski, Sergeant Mark Hawk, Detective Ronald Kline, Detective Corey Godek, Detective Rhoades, Detective Glenn, Rob Krisilla (i.e. , Kracyla),³ James Kelly, Scott Galbreath, and Alfred Parton (collectively "State Defendants"). Plaintiff alleges Defendants used excessive force during his apprehension and arrest on December 6, 2010, and failed to intervene to stop the alleged excessive use of force, all in violation of his Fourth Amendment rights. Following his arrest, Plaintiff was charged, tried by a jury in September 2011 in the Superior Court of the State of Delaware in and for New Castle County, and convicted of eighteen counts of robbery in the first degree, thirty-three counts of possession of a firearm during the commission of a felony, eleven counts of wearing a disguise, six counts of conspiracy in the second degree, six counts of aggravated menacing, eight counts of attempted robbery in the first degree, and one count of reckless endangering in the first degree. Damiani–Melendez v. State , 55 A.3d 357, 358–59 (Del. 2012). He received a total sentence of 297 years, followed by a period of Level II probation. (D.I. 271 at A26).

The arrest and conviction occurred after the Delaware State Police's Fall 2010 investigation of a string of armed robberies of retail and liquor stores in New Castle County. (D.I. 263 at Ex. 2 at DSP499–500). The robberies all appeared to be related, and all involved the use of weapons. (Id. at DSP499–500, 508). Due to the frequency of the robberies, members of the State Police and other law enforcement agencies met on December 6, 2010 for a briefing on a large-scale effort to catch the perpetrators. (Id. at DSP500–01). The law enforcement agencies decided that each night, teams of two officers would be assigned to as many area liquor stores as possible, and the officers would wait until the perpetrators arrived. (Id. ). The officers were told that the perpetrators were armed and that the getaway car was a dark-colored Honda Civic. (Id. at DSP527).

As officers left the briefing, a call came in at 7:33 p.m. stating that American Liquors on Old Baltimore Pike had been robbed. (Id. at DSP501). A second call came in at 8:13 p.m. stating that Tobacco Plus in the Four Seasons Shopping Center had been robbed. (Id. ). At 8:52 p.m., a third call came in stating that Airport News and Tobacco in Wilmington Manor had been robbed. (Id. ).

ATF task force officers Bouldin and Morrissey were assigned to Silview Liquors on West Newport Pike. (D.I. 263 at Ex. 2 at DSP502, 527; D.I. 271 at A1–A4, A9–A10). After the call about the third robbery, Bouldin saw an individual wearing a black hooded sweatshirt walk into Silview Liquors. (D.I. 263 at Ex. 2 at DSP527–28). A few minutes later, the person in the black hooded sweatshirt left the store, started to run, and stepped into a dark-colored Honda Civic. (Id. ). Morrissey also saw the individual, who was later identified as Plaintiff, enter and leave the liquor store, move quickly to his vehicle, and drive away. (D.I. 271at A3–4, A10–13).

Bouldin, who was driving his undercover vehicle, a Dodge Ram pickup, pulled in behind Plaintiff and began following him. (D.I. 263 at Ex. 2 at DSP527–28). Bouldin called out the Civic's tag number and was advised by radio dispatch that Silview Liquors had just been robbed. (Id. ). Morrissey, who was driving his undercover vehicle, a white Ford F–150 truck, saw the Civic drive away, followed by Bouldin. (D.I. 271 at A1). As Morrissey pulled out, he heard the radio dispatcher advise that Silview Liquors had just been robbed at gunpoint. (D.I. 263 at Ex. 2 at DSP527–28; Ex. 3 at DSP1031–32; D.I. 271 at A2.)

Morrissey lost sight of Plaintiff's car during the pursuit. (D.I. 271 at A2). By this time, several police officers had joined the pursuit. (Id. ). Plaintiff led a caravan of unmarked police vehicles on a high-speed chase. (D.I. 263 at Ex. 1 at 22; Ex. 2 at DSP528–29; Ex. 3). Plaintiff stated that he was speeding, traveling in excess of 70 miles per hour, and trying to lose the cars. (D.I. 263 at Ex. 1 at 71, 185). Plaintiff lost control of the vehicle after he attempted to execute a U–turn by engaging the emergency brake. (Id. at 72–73). Plaintiff was stopped near the entrance of Delaware Park at approximately 9:00 p.m. (D.I. 263 at Ex. 1 at 27; Ex. 2 at DSP528–29).

Once Plaintiff's car stopped, undercover police vehicles blocked the front, rear, and driver's side of the vehicle. (D.I. 266 at A19). Daniels' vehicle was next to the driver's side door of Plaintiff's car. (Id. at A1). Galbreath's unmarked SUV also blocked Plaintiff's car. (Id. at A5).

According to Potts, all officers were wearing identifying clothing, and the police cars had police lights. (D.I. 266 at A–19).

According to Plaintiff, however, there were no flashing lights, and the police were wearing regular clothes. (D.I. 263 at Ex. 1 at 28; Ex. 12 at 15). He could not recall if the officers were wearing police vests. (D.I. 263 at Ex. 1 at 31). According to Plaintiff, within two seconds, officers stepped out of their cars and yelled for him to put his hands up. (Id. at 22–23, 28–29). Also according to Plaintiff, in the next fifteen or twenty seconds, officers ordered him to put his hands out of the window, and an officer cuffed him. (D.I. 263 at Ex. 1 at 23–24, 29–30).

Kelly, a probation officer, pointed his gun at Plaintiff's car. (D.I. 266 at A5). Kelly says that he never left his car and was told by other officers to duck to avoid any potential cross fire. (Id. at A12). He did not see any of the arrest and left the scene after he was told that the situation was "all clear." (Id. ). Parton drew down on Plaintiff's vehicle with a rifle and remained there until other officers were able to place Plaintiff in handcuffs. (D.I. 184–2 at 20; D.I. 266 at A26). According to Parton, Plaintiff did not give up his hands and resisted arrest. (D.I. 266 at A26). Parton had no contact with Plaintiff. (Id. )

Plaintiff's driver's side window was partially down. (D.I. 266 at A19). According to Potts, Galbreath, and Parton, the officers present gave Plaintiff numerous commands to turn off his vehicle and show his hands, but Plaintiff did not acknowledge or respond to the commands. (D.I. 266 at A6, A19, A26). According to Plaintiff, he put his hands up and, after a little bit, when he saw the guns, put his hands out the window. (D.I. 263 at Ex. 1 at 23–24; Ex. 12 at 17).

Plaintiff's car doors were locked, and the car's windows were tinted dark so Daniels and Galbreath could not see how many individuals were inside. (D.I. 263 at Ex. 1 at 32–33; Ex. 2 at DSP529; D.I. 266 at A1, A6). Daniels was aware that the robbery suspects were armed. (D.I. 266 at A1). Galbreath attempted to open the passenger door, but it was locked, so he returned to his car to retrieve a Hooligan tool, which is a heavy-duty, forcible-entry tool. (Id. at A6). Daniels went to the passenger side of Plaintiff's car and used his gun to partially break the window. (D.I. 263 at Ex. 1 at 24, 32–34; D.I. 266 at A1).

When Plaintiff put his hands out the driver's side window, Bouldin handcuffed Plaintiff in front, through the open window with the door closed. (D.I. 184–3 at 5; D.I. 263 at Ex. 1 at 23–24; Ex. 2 at DSP529–30; D.I. 266 at A19). Bouldin held on to the cuffs while another officer moved a police car that was blocking Plaintiff's driver's side door. (D.I. 263 at Ex. 1 at 24–25; Ex. 2 at DSP529–30). Dudzinski arrived around this time. (D.I. 266 at A395). According to Potts and Daniels, Plaintiff refused commands to get out of the car, continued to move around in...