Waters v. Del. Dep't of Pub. Safety

LATRICE WATERS, Plaintiff, v. STATE OF DELAWARE, DEPARTMENT of PUBLIC SAFETY, LLOYD McCANN,ANDREW OSGOOD, and BRIAN HOLL, Defendants.

Civil Action No. 18-cv-266-RGA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

August 5, 2020

MEMORANDUM

Before me is Defendants' motion for summary judgment on Plaintiff's civil rights claims under 42 U.S.C. § 1983 and several state law claims. (D.I. 74). Plaintiff opposes this motion. (D.I. 82). Plaintiff has also filed a motion to exclude two of Defendants' expert witnesses. (D.I. 78). Defendants oppose this motion. (D.I. 84). Defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's motion to exclude Defendants' expert witnesses is denied. Defendants are granted leave to amend their expert witness reports.

I. BACKGROUND

Defendants, Delaware State Troopers Lloyd McCann, Andrew Osgood, and Brian Holl, were dispatched to a residence in Milford, Delaware on the night of December 20, 2015. (D.I. 76 at A11-A12). Defendants were assisting the Dover Police Department in locating Richard Wilson, an individual with an active warrant. Id. The warrant was issued for a protection from abuse order violation. Id. After identifying themselves and knocking on the door, an individual - later identified as Lionel Waters - appeared at a window. (Id. at A16-A18). Mr. Waters refused to identify himself and had a "hostile" exchange with Defendant McCann. Id. As the troopers started walking away, possibly to obtain a search warrant, Mr. Waters opened the door, and stated, "Excuse me, I have a gun." (Id. at A19-A20, A147).

Defendants drew their service weapons and Defendant McCann noticed Mr. Waters had a handgun behind his back. (Id. at A21-A22). Mr. Waters was "told multiple times to put the weapon down," but "he never did." (Id. at A23). After an amount of time described as between twenty and thirty seconds by Defendant Osgood, Defendant McCann holstered his firearm, drew his taser, and deployed it at Mr. Waters. (Id. at A23-A24, A88). Mr. Waters fell into the residence and the gun landed near his feet. (Id. at A25). After the first five-second taser cycle, Mr. Waters began to sit up. (Id. at A25, A90, A151). Defendant McCann "felt as though he was reaching for the handgun," so he reactivated the taser for a second five-second cycle. Id. Defendants Osgood and Holl were on the porch and approximately two feet away from Mr. Waters when the second taser cycle was activated. (Id. at A151). Following the second burst, Defendants Osgood and Holl moved toward Mr. Waters to secure him. (Id. at A90-A91). Defendant Osgood first swept the gun under the rug, then helped Defendant Holl secure Mr. Waters. (Id. at A92-A93). Mr. Waters was secured in "five to ten seconds" after Defendants Osgood and Holl first put their hands on him. (Id. at A94). No taser cycle was active when Mr. Waters was in the process of being secured. (Id. at A95). Mr. Waters was not "actively resisting arrest" or "thrashing about." (Id. at A93-A94). After Mr. Waters was secured, Defendants Osgood and Holl "immediately" went to secure the house after hearing screaming inside. (Id. at A97, A151).

The circumstances of the third taser burst are less clear. After the second taser burst, Defendant McCann noticed Mr. Waters "began to move somehow" with the gun still unsecured, and Defendant McCann activated the taser for a third time. (Id. at A26). Defendant McCann"believe[d]" the handcuffs were placed on Mr. Waters after burst three but could not recall. Id. As evidenced by the Taser Report, twenty seconds passed between the starts of the second and third taser bursts. (D.I. 83 at PA36). The Taser Report, which was downloaded the night/morning of the incident, shows when each taser activation occurred. (D.I. 82 at 4).

Before Defendant McCann also began searching the house, Mr. Waters' breathing was "normal." (D.I. 76 at 29). Another officer - not a defendant in this case - watched Mr. Waters as Defendant McCann went to search part of the house. (Id. at A30). At some point after securing the home, Defendant McCann noticed Mr. Waters' breathing was "labored." Id. After calling for an ambulance, the officers on the scene performed CPR and used an automatic external defibrillator ("AED"). (Id. at A31-A34, A99). Mr. Waters was in cardiac arrest by the time the EMTs arrived. (D.I. 83 at PA2). Mr. Waters never regained consciousness and died nearly three weeks later. Id.

Plaintiff filed this civil rights and tort action in Delaware Superior Court, and the case was removed to this Court on February 15, 2018. (D.I. 1). The operative complaint is an amended complaint filed on September 26, 2019. (D.I. 68). This Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 1367(a). There are three federal causes of action under 42 U.S.C. § 1983 (denominated as the second, fourth, and sixth causes of action). There are four state law causes of action: wrongful death, gross or wanton negligence, battery, and loss of consortium (denominated as the first, eighth, eleventh, andthirteenth causes of action).¹ Defendants now seek summary judgment on the civil rights and most of the state law claims.

II. LEGAL STANDARD

"The 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). A genuine issue of material fact is one that "may reasonably be resolved in favor of either Party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986). The moving party bears the initial burden of demonstrating the absence of material issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must "view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). Summary judgment should be granted if the Court finds, in consideration of all the evidence, that no reasonable trier of fact could find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

III. DISCUSSION

A. Civil Rights Claims

Plaintiff pleads three § 1983 claims against Defendants McCann, Osgood and Holl: (1) excessive force for the use of the taser; (2) false arrest; and (3) deliberate indifference to medical needs. Defendants contend that they are entitled to qualified immunity for these civil rights claims.

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)). To evaluate qualified immunity, a court must decide two issues: (1) whether the facts that a plaintiff has shown make out a violation of constitutional right, and (2) whether the right at issue was clearly established at the time of the alleged misconduct. Id. at 232. Existing precedent must place "the statutory or constitutional question beyond debate." Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

The Third Circuit has recently emphasized two rules that district courts must follow during a qualified immunity analysis. See Williams v. City of York, Pennsylvania, ___ F.3d ___, 2020 WL 4249437 at *3-4 (3d Cir. July 24, 2020). First, it is crucial for a district court to "analyze separately, and state findings with respect to, the specific conduct of each [defendant]." Grant v. City of Pittsburgh, 98 F.3d 116, 126 (3d Cir. 1996). This rule ensures that a plaintiff establishes the "personal involvement" of each defendant in order to survive summary judgment. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018). As a second rule, a district court must also "specify those material facts that are and are not subject to genuine dispute and explain their materiality." Forbes v. Twp. of Lower Merion, 313 F.3d 144, 146 (3d Cir. 2002).

1. Excessive Force Claim

Claims that law enforcement officers have used excessive force are analyzed under the Fourth Amendment and its reasonableness standard. Damiani v. Duffy, 277 F. Supp. 3d 692, 703 (D. Del. 2017), aff'd, 754 F. App'x 142 (3d Cir. 2018).

In the complaint, Plaintiff alleged the excessive force allegations against all three Defendants. (See D.I. 68 ¶ 66). However, at oral argument, Plaintiff conceded that the excessiveforce claim cannot be pursued against any Defendant other than McCann. This concession accords with the evidence, as Defendant McCann, and not the other two officers, activated all three taser bursts. Summary judgment on the excessive force claim is therefore granted for Defendants Osgood and Holl.

Defendants argue that the taser use was lawful and in accordance with clearly established law. (D.I. 75 at 15). As they note, this was a "highly volatile and quickly evolving situation" without any evidence that contradicts Defendants' testimony. Id. Defendants contend they were confronted with a "hostile," armed individual who did not drop his weapon. Id. Defendants assert this situation reasonably caused officers concern for their own safety. Id. They argue there is "no case that suggests that using a Taser on an agitated, armed individual who is failing to obey lawful orders is an excessive use of force." (Id. at 15-16).

Plaintiff argues that Mr. Waters did not make any threatening statements or movements. (D.I. 82 at 9). Further, Plaintiff asserts Mr. Waters was unable to drop his weapon before Defendant McCann deployed his taser. Id. Plaintiff contends that both the first and second shocks were not justified, but even if they were, the third shock was an excessive use of force. (Id. at 10). Plaintiff argues that the testimony of Defendants shows Mr....