                                                                                                                           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Precedential or Non-Precedential: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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"Ricker v. Weston" (2002). 2002 Decisions. Paper 32.
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                                               NOT PRECEDENTIAL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
