Davenport v. Borough of Homestead, Corp., 2:13cv250

LENA DAVENPORT, an adult individual, Plaintiff, v. BOROUGH OF HOMESTEAD, a Municipal Corporation;CITY OF PITTSBURGH, a Municipal Corporation;IAN STRANG, individually and in his official capacities as a Police Officer of the Borough of Homestead;JAMES ILGENFRITZ, individually and in his official capacities as a police officer of the Borough of Homestead;LOUIS SCHWEITZER, individually and in his official capacities as a Police Officer of the City of Pittsburgh;STEVEN MATAKOVICH, individually and in his official capacities as a Police Officer of the City of Pittsburgh;CALVIN KENNEDY, individually and in his official capacities as a Police Officer of the City of Pittsburgh;THOMAS GORECKI, Individually and in his official capacities as a Police Officer of the City of Pittsburgh;NATHAN HARPER, in his official capacity as Chief of Police of the City of Pittsburgh;JEFFREY DeSIMONE, in his official capacity of Chief of Police of Borough of Homestead;and IGOR BOYKO, individually and in his official capacity of a police Officer of the City of Pittsburgh, Defendants.

2:13cv250

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

September 30, 2016

Electronic Filing

OPINION

Plaintiff Lena Davenport ("plaintiff" or "Davenport") commenced this civil rights action seeking damages arising from injuries sustained in the early morning hours of January 13, 2013, after a police pursuit initiated by Borough of Homestead police officers ended with the discharge by several City of Pittsburgh police officers of their weapons at the vehicle in which she was a passenger, resulting in her being shot. Davenport sues the Borough of Homestead ("Homestead"), Homestead police officers Ian Strang and James Ilgenfritz; Homestead Chief of Police Jeffrey DeSimone; the City of Pittsburgh ("Pittsburgh"); Pittsburgh police officers Louis Schweitzer, Sgt. Stephen Matakovich, Det. Calvin Kennedy, Thomas Gorecki and Ivan Boyko, and former Pittsburgh Chief of Police Nathan Harper.¹ Davenport brings this action pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983. Davenport's second amended complaint asserts claims for deprivation of substantive due process in violation of the Fourteenth Amendment against all parties (First, Second,² Fifth and Sixth causes of action), claims for use of excessive force in violation of the Fourth Amendment against the City of Pittsburgh, its former Chief of Police and five of its officers (Third and Fourth causes of action), and claims under state law for assault and battery and intentional infliction of emotional distress against the City of Pittsburgh and the Pittsburgh police officers (Seventh and Eighth causes of action).

Presently before the court are Homestead Defendants' motion for summary judgment; Pittsburgh Defendants' motion for summary judgment; and Davenport's motion for summary judgment on her claims against the Borough of Homestead. For the reasons set forth below, the Homestead Defendants' motion for summary judgment will be granted, Davenport's motion for summary judgment will be denied, and the Pittsburgh Defendants' motion for summary judgment will be granted in part and denied in part.

I. PROCEDURAL BACKGROUND

Plaintiff commenced this action on February 15, 2013. After discovery, the Homestead Defendants filed their Motion for Summary Judgment with Brief in Support, Concise Statement of Material Facts, and Appendix on September 28, 2015, (ECF Nos. 91, 92, 93, 94), the original deadline set for filing summary judgment motions. On September 28, 2015, the Pittsburgh Defendants filed a consent motion for extension of the deadline. (ECF No. 89). The Pittsburgh Defendants filed their Motion for Summary Judgment with Brief in Support, and Concise Statement of Material Facts with Appendix on October 5, 2015. (ECF Nos. 95, 96, 97). Davenport filed her Motion for Summary Judgment with Respect to the Liability of Defendant the Borough of Homestead on October 5, 2015, with Brief in Support, and Concise Statement of Material Facts. (ECF Nos. 98, 99, 100). Davenport filed her Appendix in Support of Summary Judgment on October 6, 2015. (ECF No. 101). On October 7, 2015, the court entered an order on the consent motion providing that "[a]ny Dispositive Motion is to be filed on or before October 5, 2015." (ECF No. 102). Davenport filed her response in opposition to the Homestead Defendants' motion for summary judgment, including her Brief in Opposition, her Concise Statement of Material Facts in Opposition (as corrected) and her Appendix. (ECF Nos. 104, 105, 106, 107, 129). Davenport filed her response In opposition to the Pittsburgh Defendants' motion for summary judgment, including her Brief in Opposition (as corrected), her Concise Statement of Material Facts in Opposition (as corrected), and her Appendix (ECF Nos. 108, 111, 112, 113, 114, 115, 130). Homestead Defendants filed a Reply and a Counter-Concise Statement in support of their motion for summary judgment with Supplemental Appendix. (ECF No. 117, 118, 120). Pittsburgh Defendants filed a Reply in Support of their motion for summary judgment with brief in support containing additional appendix items, and a Reply to Plaintiff's Concise Statement of Undisputed Material Facts, a Reply to Plaintiff's Response to PittsburghDefendants' Concise Statement of Undisputed Material Facts and a Reply to the Corrected Concise Statement of Undisputed Facts. (ECF Nos. 124, 125, 126, 131).

Nearly two weeks after Davenport filed her motion for summary judgment, Homestead filed a motion to strike Davenport's motion for summary judgment as untimely, disputing that the parties had consented to an extension of time for the filing of a summary judgment motion by any party other than the Pittsburgh Defendants. (ECF No. 103). Davenport responded indicating that the consent requested of her was to extend the deadline for any party to file such a motion. (ECF No. 116). As the proposed order provided to and entered by the court expressly provided an extension for any dispositive motion and no objection to the order was filed by any party, the court denied the motion to strike and ordered Homestead to respond. (ECF No. 132). As ordered, Homestead then filed its response in opposition and response concise statement of facts (ECF Nos. 135, 136), and Davenport filed her reply in support with a reply to the response concise statement of facts. (ECF Nos. 137, 138). Thus, presently pending for the court's determination on the above filings are the Motions for Summary Judgment filed by Homestead Defendants, Pittsburgh Defendants, and Davenport (ECF Nos. 91, 95, 98).

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows 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). Rule 56 "'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw allreasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. Nat'l State Bank v. Fed. Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992). 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 Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(E)) (emphasis in Matsushita). 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 meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion . . . and cannot simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980) ("[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create issues of material fact that would preclude summary judgment."). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360,382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence is merely colorable or lacks sufficient probative force summary judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

"Where the party moving for summary judgment is...