Hall v. Phelps

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

Gareth J. Hall, et al., : CIVIL ACTION NO. 22-cv-480

Plaintiffs, : (JUDGE MANNION)

v. :

Charles S. Phelps; et al., :

Defendants. :

MEMORANDUM

Presently before the court is Defendant Robert Evanchick’s motion to

dismiss Plaintiffs’ supervisory liability claim against him. (Doc. 27.) Plaintiffs

are the parents and estate of the late Christian Hall, who was shot and killed

by Pennsylvania State Troopers on December 30, 2020. Defendant

Evanchick was the Pennsylvania State Police (“PSP”) Commissioner at all

relevant times. Plaintiffs allege that Evanchick is liable for the constitutional

violations suffered by Christian Hall as the result of subordinate

Pennsylvania State Troopers’ conduct. Evanchick argues that Plaintiff have

not adequately pled this claim and in any event, he is immune from liability.

However, the court finds that Plaintiffs have plausibly plead Evanchick, the

ultimate supervisor of the troopers who shot and killed Christian Hall, is

subject to supervisory liability regarding his death, and is not entitled to

qualified or sovereign immunity. Accordingly, Evanchick’s motion to dismiss

Plaintiffs’ supervisory liability claim will be denied.

I. Background

The factual background of this case is taken from Plaintiffs’ second

amended complaint, (Doc. 22), which the court must accept as true on

motion to dismiss.

On December 30, 2020, Christian Hall, age 19, suffered a mental

health emergency. Christian, held a pellet gun that from a distance looked

like a small caliber handgun and appeared to be contemplating suicide while

standing on the State Route 33 southbound overpass to Interstate 80, in

Jackson Township, Monroe County, Pennsylvania. Troopers employed by

the PSP responded. After speaking to Christian for approximately 1.5 hours,

the troopers were directed to use deadly force against Christian if he did not

drop the pellet gun perceived by the PSP as a handgun. With his hands up

but pellet gun still in hand, Christian was shot multiple times by state troopers

and died.

On the day Christian was killed the PSP issued an official statement

that provided, in relevant part, Christian “retrieved the firearm and began

walking towards the Troopers. At which time, Hall pointed the firearm in the

Troopers’ direction. As a result, Troopers fired striking Hall.” Plaintiffs allege

that Evanchick participated with subordinate agents and/or employees in

drafting this description of the incident, despite having access to video and

audio recordings that contradicted it. Once a bystander video contradicting

this official statement came to light, Evanchick did not retract or correct the

statement. Plaintiffs allege that Evanchick issued and refused to retract the

now contradicted official statement to thwart public oversight and pressure,

undermine the homicide investigation into Christian’s death, and deter

Plaintiffs from filing a civil lawsuit.

In April of 2021, Christian’s father, Gareth J. Hall, personally, and as

the Administrator of Christian’s estate, filed a praecipe for writ of summons

in the Monroe County Court of Common Pleas, and issued a subpoena to

Evanchick, as custodian of records for the PSP, to produce all audio, video,

and documents, related to Christian’s death. Evanchick, in accordance with

what Plaintiffs allege was his policy and practice, initially refused to produce

any documents by asserting that all documents were protected from

discovery pursuant to Pennsylvania’s Criminal History Record Information

Act (“CHRIA”), even though he knew they were not protected. Evanchick

also did not personally identify the troopers who shot Christian until Plaintiffs

initiated litigation in state court. Even after identifying which troopers who

shot Christian, Evanchick refused to confirm which one of them fired the fatal

shots. Plaintiffs claim this refusal was to undermine their ability to file a

private criminal complaint and to fully state their civil claims.

In December of 2021, the Pennsylvania State Law Enforcement

Citizen Advisory Commission recommended inter alia that all investigations

involving a use of force resulting in death or serious bodily injury be referred

to an external agency meeting minimum accreditation standards recognized

by the United States Department of Justice. Evanchick rejected this

recommendation. Plaintiffs allege that this action is part of Evanchick’s

toleration and encouragement of a culture at the PSP where killing troubled

persons when not necessary is tolerated.

In support of this allegation, Plaintiffs cite the case of a trooper, who

was named trooper of the year by his unit after he shot and killed a suicidal

man who allegedly pointed an Uzi submachine gun at him. That trooper

would go on to shoot and kill three additional people, including two whose

families specifically called the PSP because they were suicidal. In all these

instances the PSP insisted and was permitted to investigate itself. It was not

until 2021 that the New York Times reported the PSP omitted from their

report on the first incident that the decedent taped the alleged Uzi to his chest

and neck, so the barrel pointed up at his chin, not at the trooper or anyone

else. Furthermore, Plaintiffs allege that prior to Christian’s death, Evanchick

and the Pennsylvania State Police negotiated at arm’s length, a collective

bargaining agreement that permits the PSP to significantly delay

investigating and deciding whether a use of deadly force violated PSP

policies and training. Plaintiffs plead that all of these actions or inactions were

the proximate cause of Christian’s death.

On March 30, 2022, Plaintiffs filed their initial complaint including a

supervisory liability claim against Evanchick. (Doc. 1.) On July 7, 2022,

Plaintiffs amended their complaint. (Doc. 11.) On July 28, 2022, Evanchick

motioned to dismiss the supervisory liability claim against him, (Doc. 16), but

before the court could rule on that motion Plaintiffs filed their operative

seconded amended complaint on August 25, 2022. (Doc. 22.) Subsequently

Evanchick filed the present motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6).

II. Legal Standard

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in

part, if the plaintiff fails to state a claim upon which relief can be granted.

Fed.R.Civ.P.12(b)(6). The moving party bears the burden of showing that no

claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.

2005), and dismissal is appropriate only if, accepting all of the facts alleged

in the complaint as true, the plaintiff has failed to plead “enough facts to state

a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts”

language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The facts alleged must be sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. 544, 127 S. Ct. at 1965. This

requirement “calls for enough fact[s] to raise a reasonable expectation that

discovery will reveal evidence of” necessary elements of the plaintiff’s cause

of action. Id. Furthermore, in order to satisfy federal pleading requirements,

the plaintiff must “provide the grounds of his entitlement to relief,” which

“requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Phillips v. County of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted)

(quoting Twombly, 550 U.S. 544, 127 S. Ct. at 1964-65).

In considering a motion to dismiss, the court generally relies on the

complaint, attached exhibits, and matters of public record. See Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider

“undisputedly authentic document[s] that a defendant attaches as an exhibit

to a motion to dismiss if the plaintiff’s claims are based on the [attached]

documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d

1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are

alleged in the complaint and whose authenticity no party questions, but which

are not physically attached to the pleading, may be considered.” Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However,

the court may not rely on other parts of the record in determining a motion to

dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994).

Finally, “[i]nasmuch as Pennsylvania law governs this action[,] we treat

Pennsylvania Supreme Court opinions as binding precedent and

Pennsylvania Superior Court opinions as persuasive precedent.” State Farm

Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 105, 107 n.2 (3d Cir. 2009).

III. Discussion

Evanchick argues that Plaintiffs fail to state a claim for supervisory

liability under the First, Fourth, and Fourteenth Amendments because they

do not plead his personal involvement. Specifically, he argues that issuing a

press release containing statements Plaintiffs disagree with does not violate

the First Amendment, and his overall conduct does not shock the conscience

so at to establish a Fourteenth Amendment violation. Moreover, Evanchick

claims he is entitled to qualified and sovereign immunity from all of Plaintiffs’

claims. However, Plaintiffs in their brief in opposition clarify that their

supervisory liability claim is based solely on alleged Fourth Amendment

violations. (Doc. 34 at 2-3 n.1 & n.4.) Likewise, they clarify that they are suing

Evanchick in his personal not official capacity making sovereign immunity

inapplicable. (Doc. 34 at 3 n.2; Doc. 22 at ¶10.) Nonetheless Evanchick’s

counsel continues to argue these issues in his reply brief. Conversely

Plaintiffs’ counsel spill much ink arguing how Evanchick’s conduct after

Christian’s death makes him liable for PSP troopers shooting and killing

Christian but does not clearly explain how his actions or lack thereof before

Christian’s death impose supervisory liability.

Putting these arguments aside the court address the issues most

relevant to its decision here namely whether Plaintiffs have adequality pled

Evanchick knew about and failed to address constitutional violations by his

subordinates of the kind Christian suffered, whether the constitutional right

Plaintiffs claim Evanchick subordinates violated was clearly established at

the time of the violation, and whether Evanchick can claim sovereign

immunity when as is the case here he is sued in his personal not official

capacity.

A. Supervisory Liability

To state a claim for supervisory liability against Evanchick, Plaintiffs

“must show that he participated in violating Christian’s rights, or that he

directed others to violate them, or that he, as the person in charge of the

[violation], had knowledge of and acquiesced in his subordinates’ violations.”

Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995). A supervisory

defendant in a §1983 action may not be liable based merely on the theory of

respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). Instead, the plaintiff must allege that the supervisory defendant was

personally involved in the incident at hand. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005). “Unfortunately, the term ‘personal involvement’ is not

universally defined in applicable case law.” Broadwater v. Fow, 945 F. Supp.

2d 574, 587 (M.D. Pa. 2013)(citing Argueta v. U.S. Immigration and Customs

Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (“Plaintiffs acknowledge that

the ‘terminology’ used to describe ‘supervisory liability’ is ‘often mixed.’”)).

Still the caselaw is clear that the defendant supervisor must somehow exhibit

a “deliberate indifference” to the deprivation of the plaintiff’s constitutional

rights. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).

Policy-making supervisors like Evanchick may be liable if they

“established and maintained a policy, practice or custom which directly

caused [the] constitutional harm.” Santiago v. Warminster Twp., 629 F.3d

121, 129 n. 5 (3d Cir.2010)(quoting A.M. ex rel. J.M.K. v. Luzerne Cnty.

Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). A supervisor’s failure

to employ a specific supervisory practice or procedure to correct a known

unreasonable risk of constitutional harm also satisfies the personal

involvement requirement. Sample, 885 F.2d at 1118. Likewise mere

knowledge and acquiescence in a subordinate’s constitutional violations may

qualify as personal involvement. Rode 845 F.2d at 1207 (3d Cir. 1988).

Allegations that a supervisor “tolerated past or ongoing misbehavior” may

further suffice. Baker, 50 F.3d at 1191 n. 3 (3d Cir. 1995) (citing Stoneking

v. Bradford Area Sch. Dist., 882 F.2d 720, 724–25 (3d Cir.1989)).

To establish knowledge and acquiescence of a subordinate’s

misconduct, a plaintiff must allege the defendant’s (1) contemporaneous

knowledge of the offending incident or knowledge of similar incidents in the

past, and (2) actions or inactions which communicated approval of the

subordinate’s behavior. See C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d

Cir. 2000). A plaintiff may not allege that a supervisory defendant had

constructive knowledge of a subordinate’s unconstitutional conduct simply

because of his role as a supervisor. See McQueen v. Phila. Hous. Auth., Civ.

A. No. 02–8941, 2003 WL 22533726, at *3 (E.D.Pa. Sept. 26, 2003).

Furthermore, failure to train only amounts to deliberate indifference “where

the need for more or different training is obvious” and the lack of training can

be expected to result in constitutional violations. Carter v. City of Phila., 181

F.3d 339, 357 (3d Cir. 1999)(citing City of Canton v. Harris, 489 U.S. 378,

388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

Evanchick argues that Plaintiffs do not plead his personal involvement

in the alleged violation of Christian’s constitutional rights i.e., be free from

excessive and deadly force.1 Whereas Plaintiffs argue that the facts in their

complaint show Evanchick tolerated and actively encouraged the use of

excessive force by subordinates by intentional using his authority as a

supervisor to cover up and excuse wrongdoing. In support of this argument

Plaintiff’s point to Evanchick’s pled conduct after Christian died, namely his

personal involvement in publishing a since contradicted official statement

about Christian’s death, failing to comply with Plaintiff’s subpoena, and

refusing to identify the trooper that fired the fatal shots. However, none of

these subsequent actions or inactions are relevant to the court’s analysis

1 . See, e.g., Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011)

(finding this right “clearly well-established” because “[i]t has long been the

law that an officer may not use deadly force against a suspect unless the

officer reasonably believes that the suspect poses a threat of serious bodily

injury to the officer or others”).

which turns on what Evanchick did or failed to do before Christian was shot

and killed.

For guidance on this issue, the court looks to two cases, where

similarly situated Plaintiffs brought supervisory liability claims against the

PSP Commission. In Zion v. Nassan, 727 F.Supp.2d 388 (W.D.Pa. 2010), a

state trooper and his partner shot and killed an unarmed person in his car.

727 F.Supp.2d at 392–93. The estate representative and children of the

decedent brought a supervisory liability claim pursuant to §1983 against the

PSP Commissioner, the trooper’s area commander, the trooper’s

commanding officer, and the trooper’s direct supervisor. Id. at 391–93. The

complaint included numerous allegations of the defendant trooper’s violent

history including an incident where a civil jury previously found him liable for

the shooting death of a twelve-year old boy. Id. at 392–93. The complaint

specifically alleged that the trooper’s supervisors were aware of these

incidents. Id. at 392–93. The supervisors did not order additional training of

the trooper, and one even ordered a subordinate to alter the trooper’s

employment records. Id. As a result the court found plaintiffs adequately

alleged sufficient facts to impose liability on the supervisors including the

PSP Commissioner and denied defendants’ motion to dismiss. Id. at 407.

In Barber v. Pennsylvania State Police, Civ. A. No. 06–1713, 2007 WL

2071896 (W.D.Pa. Jul. 19, 2007), the court also denied the PSP

Commissioner’s motion to dismiss plaintiff’s supervisory liability claim. 2007

WL 2071896, at *3. The plaintiff specifically alleged that the PSP

Commissioner occupied a position of responsibility, in which he “knew or

should have know [sic] of the aforementioned problems and misconduct of

the Pennsylvania State Police....” Id. at *4. The plaintiff also alleged that other

PSP troopers, other than the officer in question, had used excessive force

on individuals. Id. The court reasoned that other legal claims involving the

use of excessive force should have placed the Commissioner on notice of

the problem and alerted him to the need for further training and supervision.

Id. The court in Broadwater synthesized Zion and Barber to conclude that

the “key factors” in both cases were “the supervisory defendants’ knowledge

of ongoing constitutional issues or problems, authority or means to address

the matters, and, ultimately, failure to take appropriate action.” 945 F. Supp.

2d at 589–90 (M.D. Pa. 2013).

Unlike in Zion, Plaintiffs here do not allege that either of the troopers

who shot Christian have violent histories including past civil verdicts against

them, nor do they allege that Evanchick had any knowledge of such history.

However, like in Barber they do allege that Evanchick occupied a position of

responsibility, in which he should have known other PSP troopers, as noted

above, had used excessive deadly force on individuals experiencing mental

health emergencies like Christian did on December 30, 2020. While unlike in

Barber Plaintiffs do not specifically allege legal claims were filed against that

trooper or other PSP employees for similar conduct, they do allege that the

PSP itself investigated the deadly force incidents involving them. Such

investigations should have put Evanchick on notice of PSP troopers

potentially unconstitutional use of excessive and deadly force against

suicidal persons and alerted him to the need for further training and

supervision. As pled Evanchick had knowledge or was at least deliberately

indifferent to ongoing constitutional issues or problems within the PSP, and

authority or means to address the matters, but, ultimately, failed to take

appropriate action. Accordingly, Plaintiffs at this stage of the litigation

plausibly plead a supervisory liability claim against Evanchick based on

excessive force in violation of the Fourth Amendment.

B. Qualified Immunity

Qualified immunity “shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Mullenix v. Luna, 577

U.S. 7, 11(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct.

808 (2009)). The test is whether, on an objective basis no reasonable,

competent official would have reached the same conclusion as was reached

by the defendant. Malley v. Briggs, 475 U.S. 335, 341 (1986). If officials of

reasonable competence could disagree on this issue, immunity should be

recognized. Id. Even if the official’s conduct violates a person’s constitutional

rights, the official would be immune from liability if his conduct were due to a

mistake in judgment. Id.; Butz v. Economu, 438 U.S. 478 (1978). Thus, the

only inquiry which must be undertaken is a question of law, that is: “the

objective (albeit fact-specific) question” whether a reasonable official in the

defendant’s position in this case could have believed his actions “to be lawful,

in light of clearly established law and the information. . . [they] possessed.”

Anderson v. Creighton, 483 U.S. 635, 641 (1987).

“Clearly established means that, at the time of the officer’s conduct,

the law was sufficiently clear that every reasonable official would understand

that what he is doing is unlawful.” District of Columbia v. Wesby, 583 U.S.

48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (internal quotation marks

and citation omitted). For qualified-immunity purposes, “clearly established

rights are derived either from binding Supreme Court and Third Circuit

precedent or from a ‘robust consensus of cases of persuasive authority in

the Courts of Appeals.’” Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir.

2018) (citation omitted); see Wesby, 138 S. Ct. at 589–90 (“To be clearly

established, a legal principle must ... [be] dictated by controlling authority or

a robust consensus of cases of persuasive authority[.]” (citations and internal

quotation marks omitted))

Evanchick claims his counsel has found no precedent that would

suggest that: 1) aggressively responding to a subpoena; 2) issuing a press

release; or 3) rejecting a recommendation of an advisory board violated any

clearly established constitutional rights and he is therefore entitled to

qualified immunity from any claim based on those actions or inactions.

Likewise, Evanchick argues that anecdotal evidence about the use of

excessive force by one other PSP member out of a complement of 4,500,

does not evidence a concerted effort to permit subordinates to use excessive

force, or show that he engaged in any violation of clearly established law.

These arguments miss the mark. In the context of supervisory liability

claims, “it is Plaintiff’s right that must be clearly (or shown not to be clearly

established by the Supervisor Defendants), not the standard to impose

supervisory liability.” Rosenberg v. Vangelo, 93 F. App’x 373, 378–79 (3d

Cir. 2004)(citing Beers–Capitol v. Whetzel, 256 F.3d 120, 142 n. 15.) It is

clearly established that citizens have a right to be free from excessive and

deadly force during lawful arrests absent the risk of serious bodily injury to

police or others. See Dull v. W. Manchester Twp. Police Dep’t, 604 F. Supp.

2d 739, 749 (M.D. Pa. 2009)(citing Kopec v. Tate, 361 F.3d 772, 776–78 (3d

Cir. 2004)(“Every citizen has a Fourth Amendment right to be free from

excessive force during lawful arrests.”); See also Lamont, 637 F.3d at 185

(“[i]t has long been the law that an officer may not use deadly force against

a suspect unless the officer reasonably believes that the suspect poses a

threat of serious bodily injury to the officer or others”).

Plaintiffs allege that this right was violated when Evanchick’s

subordinates shot and killed Christian, making Evanchick liable as their

ultimate supervisor. Accordingly, Evanchick is not entitled to qualified

immunity from Plaintiff’s supervisory liability claim based on a Fourth

Amendment excessive force violation at this stage of the litigation.

C. Sovereign Immunity

The Eleventh Amendment has been interpreted to make states

generally immune from suit by private parties in federal court. See Board of

Tr. of Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962, 148

L.Ed.2d 866 (2001); College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 669–70, 119 S.Ct. 2219, 144 L.Ed.2d 605

(1999); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct.

2028, 138 L.Ed.2d 438 (1997); Seminole Tribe of Florida v. Florida, 517 U.S.

44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). This immunity extends to

state officials acting in their official capacities because it “is not a suit against

the official but rather is a suit against the official’s office” and, therefore, is

“no different from a suit against the state itself. Will v. Michigan Dept. of State

Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)(internal

citations omitted). However, the Eleventh Amendment does not bar a suit

against state officials acting in their personal capacity. Hafer v. Melo, 502

U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

Despite Plaintiffs clearly alleging claims in their second amended

complaint against Evanchick in his personal not official capacity (Doc. 22 at

¶10), Evanchick’s counsel argues for entitlement to sovereign immunity on

motion to dismiss. Plaintiffs, despite clarifying in their brief in opposition that

they are suing Evanchick in his personal capacity (Doc. 34 at 3 n.2), also do

not argue this fact deprives him of sovereign immunity but instead argue that

Evanchick is not entitled to sovereign immunity because his contested

actions were outside the scope of his employment. In their reply Evanchick’s

counsel again overlooks the dispositive flaw in their sovereign immunity

argument and focuses their attention on emphasizing Evanchick’s actions

were within the scope of his employment as PSP Commissioner. Regardless

of whether Evanchick’s action were in the scope of his employment,

sovereign immunity does not apply here because Plaintiffs have sued

Evanchick in his personal capacity. Accordingly, Evanchick is not entitled to

sovereign immunity from Plaintiffs’ supervisory liability claim against him.

IV. Conclusion

Based on the aforesaid Defendant Evanchick’s Motion to Dismiss

(Doc. 27) will be denied at this stage of the litigation. An appropriate order

follows.

s/ Malachy E. Mannion ____

MALACHY E. MANNION

United States District Judge

DATE: March 11, 2024

22-480-02