Ricker v. Weston

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

1-24-2002

Ricker v. Weston

Precedential or Non-Precedential:

Docket 0-4322

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 00-4322

__________

MITCHELL RICKER; ALESSIO ZAGRA; ERIC FREEMAN

v.

SERGEANT MICHAEL D. WESTON, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS A MEMBER OF THE EASTON POLICE DEPARTMENT;

OFFICER JOHN D. REMALEY, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY

AS A MEMBER OF THE EASTON POLICE DEPARTMENT;

CAPTAIN DOUGLAS D. SCHLEGEL, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS A MEMBER OF THE EASTON POLICE DEPARTMENT;

CHIEF LAWRENCE R. PALMER, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS A MEMBER OF THE EASTON POLICE DEPARTMENT;

MAYOR THOMAS F. GOLDSMITH, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS MAYOR OF THE CITY OF EASTON;

THE CITY OF EASTON; THE CITY OF EASTON POLICE DEPARTMENT;

JESSE E. SOLLMAN, OFFICER; EDWARD J. ZUKASKY, CAPTAIN

Michael D. Weston; Douglas D. Schlegel;

Lawrence R. Palmer; Thomas F. Goldsmith;

Edward J. Zukasky,

Appellants

__________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

D.C. Civil No. 99-cv-05879

District Judge: The Honorable Stewart Dalzell

__________

Argued December 13, 2001

__________

Before: SCIRICA, BARRY, Circuit Judges, and MUNLEY, District Judge

(Opinion Filed: January 24, 2002)

____________

Daniel J. Dugan, Esq. (Argued)

Spector, Gadon & Rosen

1635 Market Street

Seven Penn Center, 7th Floor

Philadelphia, PA 19103

Attorneys for Appellants

Arthur J. Russo, Esq. (Argued)

235 Frost Avenue

Phillipsburg, NJ 08865

Attorney for Appellee Mitchell Ricker

John P. Karoly, Jr., Esq. (Argued)

Law Offices of John Karoly

1555 North 18th Street

Allentown, PA 18104

Attorney for Appellee Alessio Zagra

Harold J.J. DeWalt, Jr., Esq. (Argued)

8 North Main Street

Nazareth, PA 18064

Attorney for Appellee Eric Freeman

____________

OPINION

____________

BARRY, Circuit Judge

Appellants Sergeant Michael Weston, Captain Douglas Schlegel, Captain

Edward

Zukasky, Chief Lawrence Palmer, and Mayor Thomas Goldsmith are defendants

together

with Officer John Remaley, Officer Jesse Sollman, and the City of Easton,

Pennsylvania,

in an action brought by appellees Mitchell Ricker, Alessio Zagra, and Eric

Freeman.

Appellants appeal from the order of the United States District Court for

the Eastern

District of Pennsylvania denying their motion for summary judgment insofar

as that order

denied them qualified immunity on the claims brought under 42 U.S.C.

1983. The

District Court had jurisdiction under 28 U.S.C. 1331 and 1343(a), and

we have

jurisdiction under 28 U.S.C. 1291 and the collateral order doctrine

although, as will

become clear, we lack jurisdiction to consider the factual components of

the District

Court's holding. For the reasons which follow, we will reverse as to

appellants Zukasky,

Palmer, and Goldsmith and will dismiss the appeal of appellants Weston and

Schlegel for

lack of jurisdiction.

I. FACTS

The facts underlying this appeal are hotly disputed, and we view

those facts, as we

must, in the light most favorable to the non-moving parties Ricker,

Zagra, and

Freeman. On November 27, 1997, the annual Thanksgiving Day football game

between

the Phillipsburg, New Jersey and Easton, Pennsylvania high school teams

was held at

Lafayette College in Easton. After Phillipsburg won, the Phillipsburg

fans, mostly

teenagers and young adults, started the traditional walk back to New

Jersey across the

Delaware River via the Route 22 toll bridge. Included in the crowd of

people were

Ricker, Zagra, and Freeman. As the crowd made its way across the bridge,

pedestrian

traffic began to spill over from the sidewalks to the roadway. This

created a hazard for

cars driving over the bridge, and the bridge was soon closed to vehicular

traffic.

Five police officers from Easton's K-9 Unit and their dogs were

present on the

bridge. Schlegel had deployed them in anticipation of problems and in

order to direct the

crowd's movement across the bridge. Schlegel did not, however, assign any

other

officers to the bridge to support the K-9 Unit despite his fear, and later

knowledge, of

dangerous conditions. Schlegel was the only Easton police officer on the

bridge outside

of the five K-9 officers.

Of the five K-9 officers, three were defendants Remaley and Sollman

and

appellant Weston. Weston was the officer in charge of the K-9 Unit and

was responsible

for issuing all orders. Upon his instruction, the K-9 Unit formed a line

across the Easton

side of the bridge. A group of approximately two to three hundred people

slowly formed

in the center of the bridge. The officers and their dogs charged the

crowd in order to

disperse it. During the ensuing melee, Ricker, Zagra, and Freeman were

injured from

either dog bites, repeated baton blows, or both.

Zagra and his brother were part of the crowd charged by the K-9 Unit.

When they

saw the dogs and people panicking, they stopped moving and sought safety

in the rear.

Remaley yelled at Zagra to start moving and to get off the bridge. Zagra

tried to explain

to the officer that he and his brother had nowhere to go, but Remaley was

unyielding. He

hit Zagra on the right shoulder with his baton, started to shout

obscenities, and ordered

him "to get the fuck off the bridge right now" and to "move, scumbag, now

fucking

move." (A. 327-28; Zagra Dep. at 40) When Zagra repeated that he was

unable to move,

Remaley took out his baton and struck Zagra numerous times in the legs in

an effort to

"teach" Zagra how to walk. The blows and obscenities continued until

Remaley was

called away by Weston.

Ricker and his friends were walking in the road next to the bridge's

northern

sidewalk when they saw the officers charge the crowd. Frightened, Ricker

tried to move

out of the way. As he was climbing over the concrete barrier that

separates the road from

the sidewalk, he was struck in the back by Weston's baton. While hunched

over the

barrier, Ricker was bit by Weston's dog in the back of the left thigh.

The dog continued

to grab Ricker's leg until several pedestrians were able to pull Ricker

over the barrier to

safety. At no time, did Weston place Ricker under arrest or order him to

lie down or stop.

Meanwhile, Freeman was walking with his friends on the bridge's

northern

sidewalk when he observed the K-9 officers charge the crowd and attack

Zagra and

Ricker. When he reached the area where Ricker was being attacked, he saw

two officers

and their dogs. Both pairs jumped over the concrete barrier and started

running in

Freeman's direction. One pair ran by Freeman, but the other stopped in

front of him. The

dog began jumping and barking in Freeman's face and nicked Freeman's left

arm.

Freeman tried to run and to jump out of the dog's way, but the dog grabbed

the back of

his right leg and pulled him to the ground. Freeman eventually struggled

free. The

officer, later identified as Sollman, jumped back over the barrier and

continued down the

road without arresting Freeman.

With his leg ripped open, Freeman sought immediate medical attention

from the

first Phillipsburg police officer he spotted. The officer told him to

keep walking, so he

went to a second officer. As he lifted his leg to show the officer his

wound, Schlegel

spotted Freeman and started running after him. Afraid, Freeman began

running towards

Phillipsburg until his leg quit. Schlegel caught, tackled, and arrested

him. With the help

of two other officers, Schlegel dragged Freeman to the middle of the

bridge where his

patrol car was parked. Freeman was transported to the Easton Police

Department

headquarters where he was booked on charges of riot, failure of disorderly

persons to

disperse, obstructing highways, aggravated assault, simple assault,

resisting arrest, and

escape. Freeman was eventually acquitted of all charges.

In the months following the attacks, Goldsmith and Palmer assigned

Zukasky to

conduct an internal investigation of the bridge incident. Zukasky's

report was allegedly

incomplete, and despite its conclusion that certain of the officers had

violated department

policies, Palmer disciplined only Remaley for using foul language.

Even before the bridge incident, Goldsmith and Palmer were aware of

past

episodes of excessive force by officers in the police department. When

Goldsmith

became mayor, he was advised of twenty-five outstanding lawsuits for

excessive force.

In particular, Schlegel was the subject of several excessive force

actions. Additionally, he

had been terminated by the police department as a result of an off-duty

incident of

violence, although he was eventually reinstated. Nonetheless, Goldsmith,

upon Palmer's

recommendation, promoted Schlegel to Captain of Field Services and placed

him in

command on November 27, 1997.

II. DISCUSSION

The defense of qualified immunity shields government officials

performing

discretionary acts 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly,

qualified

immunity is unavailable where (1) the plaintiff has alleged a violation of

an actual

constitutional right and (2) the right was clearly established when

allegedly violated.

Wilson v. Layne, 526 U.S. 603, 609 (1999). Under the collateral order

doctrine, an order

denying qualified immunity at the summary judgment stage may be

immediately

appealable if the denial turned on a question of law. Mitchell v.

Forsyth, 472 U.S. 511,

530 (1985); Eddy v. Virgin Islands Water & Power Authority, 256 F.3d 204,

208 (3d Cir.

2001). To the extent a question of law is presented, this Court has

jurisdiction and

exercises plenary review. Eddy, 256 F.3d at 208. In exercising such

review, the Court

adopts the facts assumed by the district court when denying the motion for

summary

judgment. Johnson v. Jones, 515 U.S. 304, 319 (1995). If, however, the

denial rested on

a determination that there were genuine issues of material fact for trial,

the question of

evidentiary sufficiency is not immediately appealable. Id. at 313.

We note at the outset the difficulty we have had in parsing what

precisely is

alleged against each appellant Freeman's Count 9, for example, entitled

"Violation of

Constitutional Rights," is essentially a blunderbuss count, nonspecific as

to what any of

the numerous defendants are alleged to have done. Similarly, we have had

difficulty

because appellants Weston and Schlegel sought qualified immunity as to all

Section 1983

claims except the Fourth Amendment claims in which they were implicated by

virtue of

direct physical contact with one or more of the appellees. Thus, Weston

asserted

immunity vis-a-vis Freeman's and Zagra's complaints, but not Ricker's, and

Schlegel

asserted immunity vis-a-vis Zagra's and Ricker's complaints, but not

Freeman's. In a

nutshell, Weston and Schlegel seem to believe, at least as to the Fourth

Amendment

claims, that they should be immunized for any actions or inactions

which did not

involve direct physical contact.

The District Court was similarly hampered in its ability to apply the

doctrine of

qualified immunity.

[O]ur analysis on this analysis has been handicapped by the

extraordinary

absence of specificity in all parties' briefs. The parties persist

in the

practice of arguing through conclusory statements supported by

generalized

reference to the extensive statements of fact with which they each

open

their briefs. This places us in the unwelcome position of having to

search

through the parties' claimed fact sets in search of the information

that

supports their arguments. While we will engage in this enterprise to

a

certain extent, as the Court of Appeals for the Seventh Circuit has

observed

in a slightly different context, "[j]udges are not like pigs, hunting

for

truffles buried in briefs," United States v. Dunkel, 927 F.2d 955,

956 (7th

Cir. 1991) (per curiam).

Memo. at 29 n.31 attached to Appellants' Br. (hereinafter "Memo").

Moreover, the Court

continued, the motion for qualified immunity focused on defendants'

actions but failed to

address a number of the theories that plaintiffs were pursuing and, thus,

even if

defendants' arguments insofar as they made them were correct, "it would

not necessarily

justify a grant of qualified immunity . . ." Id. at 30-31. It appears,

therefore, that because

there was alleged but unaddressed wrongdoing, the District Court declined

to find that

qualified immunity was in order.

The Court, nonetheless, went on to review some of the facts elicited

through

discovery and found, as to Sergeant Weston and Captain Schlegel, that the

evidence was

conflicting.

We begin with Sergeant Weston. As defendants note,

Sergeant

Weston is not alleged to have physically assaulted Zagra or Freeman.

However, he is the officer in charge of the K-9 units and it was he

who gave

the order for the K-9 units to charge the crowd, an order that

precipitated

the events at issue here. On the conflicting evidence before us

regarding the

incident, we cannot conclude that these actions were objectively

reasonable

in view of the federal law surrounding the use of the police force.

Captain Schlegel's report of the incident states that

because of the

crowd's behavior at the game, he anticipated problems on the bridge.

To

address his concern, he sent two additional K-9 units to the bridge

to add to

the three units who had previously been assigned to the bridge . . .

Schlegel

did not, however, assign any other officers to support the K-9 units,

although he himself was later present on the bridge. While on the

bridge,

he chased, tackled, and arrested plaintiff Freeman in part because he

was

displaying a bite on his leg, which Schlegel believed to demonstrate

that

Freeman had previously engaged in illegal activity. Again, on the

conflicted facts before us we cannot say that these acts were

objectively

reasonable.

Memo. at 31-32 n.34 (emphasis added).

The District Court, therefore, found genuine issues regarding facts

that were

material to determining whether Weston's and Schlegel's actions were

objectively

reasonable. "Under Johnson v. Jones, supra, this is a question of

evidentiary sufficiency

that we may not address in this [collateral order] appeal." Eddy, 256

F.3d at 211. As

Justice Ginsburg put it, "if an excessive force claim turns on which of

two conflicting

stories best captures what happened on the street, Graham [v. Connor, 490

U.S. 386

(1989)] will not permit summary judgment in favor of the defendant

official; . . . [A] trial

must be had." Saucier v. Katz, 121 S.Ct. 2151, 2164 (2001) (Ginsburg, J.,

concurring in

the judgment). We, therefore, dismiss the appeals of Weston and Schlegel

for lack of

jurisdiction and leave for trial the determination of whether their

actions and/or inactions

at the bridge on that Thanksgiving Day violated the Fourth Amendment

rights of Ricker,

Zagra, and/or Freeman by virtue of excessive force they themselves used,

condoned, or

ordered.

The appeals of Captain Zukasky, Chief Palmer, and Mayor Goldsmith

stand on a

different footing and are properly before us because summary judgment was

not denied

on the basis of conflicting evidence. Rather, summary judgment was denied

as to them

because, as noted earlier, all of the allegations of wrongdoing had not

been addressed by

these appellants and because, as to those allegations the Court discussed,

qualified

immunity, as a matter of law, was not warranted. We conclude that the

District Court

erred.

One or more of the appellees allege that, among other lesser wrongs,

appellants

Zukasky, Palmer, and Goldsmith encouraged or acquiesced in the K-9 Unit's

unlawful

conduct when one or more of them promoted Schlegel to captain despite his

record of

misconduct, assigned Remaley to the K-9 Unit despite his prior violent

off-duty and on-

duty episodes, conducted a superficial investigation of the bridge

incident, and failed to

reprimand the officers for their conduct in that incident. Zukasky,

Palmer, and Goldsmith

were not at the bridge on the day in question and liability is sought as

to them because of

acts they should or should not have taken in some sort of supervisory or

policymaking

capacity before and/or after the bridge incident.

A supervisor may be liable under 42 U.S.C. 1983 for his or her

subordinate's

unlawful conduct if he or she directed, encouraged, tolerated, or

acquiesced in that

conduct. Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001);

Blanche Road

Corp. v. Bensalem Twp., 57 F.3d 253, 263 (3d Cir. 1995); Baker v. Monroe

Twp., 50

F.3d 1186, 1190-91 (3d Cir. 1995). For liability to attach, however,

there must exist a

causal link between the supervisor's action or inaction and the

plaintiff's injury. Brown,

269 F.3d at 216. "[I]t 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." Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). Rather,

there must exist a

close relationship between the supervisor's deficient conduct and the

ultimate injury.

City of Canton v. Harris, 489 U.S. 378, 391 (1989); Sample, 885 F.2d at

1118. In other

words, the supervisor's acts must be the "moving force [behind] the

constitutional

violation." Harris, 489 U.S. at 389 (citations omitted). The supervisor

must be directly

and actively involved in the subordinate's unconstitutional conduct.

Brown v.

Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990).

Zukasky, Palmer, and Goldsmith had no involvement in the K-9

officers' allegedly

unconstitutional conduct on the bridge that day. Liability against

Zukasky is asserted

only by Freeman and is based solely on Zukasky's role in investigating the

incident.

Freeman alleges that the investigation was inadequate primarily because

Zukasky did not

question all of the possible witnesses and failed to use all of the police

department's

investigators, but does not explain how any of this resulted in or

aggravated his injuries

from dog bites. Moreover, even assuming, arguendo, that the K-9 officers

were not

disciplined as a result of Zukasky's investigation, that investigation did

not in any way

cause Freeman's injuries. Consequently, Zukasky was not a "moving force"

behind those

injuries, and no constitutional right of Freeman's was violated.

We reach the same conclusion as to Palmer and Goldsmith. The

undisputed facts

indicate that they knew about Schlegel's prior misconduct but nonetheless

promoted him

to Captain of Field Services. They also knew of Remaley's violent

episodes but

permitted him to be a member of the K-9 Unit. These acts are, as a matter

of law,

insufficient to constitute the requisite direct involvement in appellees'

injuries.

Moreover, there is no evidence indicating that Palmer and Goldsmith were

aware of any

previous mishandling of police dogs by the officers. In earlier years,

the K-9 Unit had

been deployed following the Thanksgiving football game without incident.

Importantly,

neither Palmer nor Goldsmith were aware of the attacks in question until

after they

occurred. At that time, they ordered an investigation but ultimately

chose not to

discipline the officers involved, even though it appears that Zukasky had

recommended

that at least certain of the officers be disciplined. This decision not

to discipline the

officers does not amount to active involvement in appellees' injuries

given that all of the

injuries occurred before the decision. There is simply no causal link

between those

injuries and what Palmer and Goldsmith did or did not do.

Because under the facts as appellees allege them to be there is, as a

matter of law,

an insufficient causal connection to appellees' injuries as against

appellants Zukasky,

Palmer, and Goldsmith, appellees have not alleged a violation of their

constitutional

rights, and those appellants' motion for summary judgment on the basis of

qualified

immunity should have been granted.

III. CONCLUSION

The appeals of Sergeant Weston and Captain Schlegel will be dismissed

for lack of

jurisdiction. The order of the District Court will be reversed insofar as

it denied summary

judgment on the basis of qualified immunity to Captain Zukasky, Chief

Palmer, and

Mayor Goldsmith. The case will be remanded for further proceedings in

accordance with

this opinion.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

/s/ Maryanne Trump Barry

Circuit Judge