PHILADELPHIA – Plymouth Township seeks to dismiss a survival and wrongful death suit brought against it by the family of a mentally ill man killed in a local police-involved shooting.
The Estate of Michael Tristian Paone, deceased (by and through the Administrators of the Estate, Michael Paone, Jr. and Lisa Paone) of Horsham, plus Lisa Paone and Juliana Paone of Pottstown first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 3 versus Plymouth Township and the Plymouth Township Police Officer John Does 1-10.
“As of the evening of Aug. 3, 2021, the decedent Michael T. Paone was 22 years old. Decedent had a known history of mental illness. He had been diagnosed with Attention Deficit Disorder as a child, and as an adult with an anxiety disorder, obsessive-compulsive disorder with recurring thought, bipolar disorder with features of schizophrenia, grandiose, delusions and paranoia (but not schizo-affective disorder). Decedent’s symptoms caused by his mental illness were not always present, and he was often able to maintain normal social relationships whereby his mental illness was not apparent to all those who knew him,” the suit said.
“On the evening of Aug. 3, 2021, decedent and Juliana were at the complex of the apartment they shared with Lisa. Upon information and belief, the apartment is one of 309 apartments in the Plymouth Gardens complex. The complex is composed of approximately a dozen two-story buildings of varying size, set in a garden-type landscape. At approximately 10:45 p.m. on the evening of Aug. 3, 2021, Juliana left the apartment and walked to her car that was parked in the complex parking lot. As she neared her car, she was approached by decedent, who appeared agitated and was exhibiting symptoms consistent with his mental illness.”
Shortly after their encounter in the parking lot, Juliana and the decedent returned to the apartment and he became aggressive with Lisa, stabbing her in the arms with a small knife, causing superficial wounds to her arms.
This caused Juliana to call 911 for help at 11:11 p.m., after which time the decedent calmed down, ceased his aggression and walked outside the apartment. On the 911 call, Juliana explained her brother was armed with a knife and was attempting to stab their mother, that he had mental health issues and had recently been involuntarily committed to a mental health facility the prior month. An incident there also required a police response, the suit said.
“At approximately 11:14 p.m. on Aug. 3, 2021, in response to the 911 dispatch question of whether decedent had other weapons or guns, Sister reported to 911 that decedent did not have guns but he had a ‘fake toy gun’. When the police arrived, decedent was standing at the bottom of a slight incline, between two of the buildings, with his back to one of the buildings, which was about 20 feet behind him. Upon information and belief, at approximately 11:15 p.m., police officers, including Does 1-3 arrived at the complex and began to approach decedent. Doe 1 was positioned approximately 50 feet from decedent, on a slight incline uphill from decedent, and safely behind a large trash dumpster that was inside an enclosure. Does 2-3 were positioned in the parking lot safely between parked cars, approximately 25 to 30 feet from decedent. While Does 1-3 were thus positioned, one of them told decedent to drop his gun,” the suit added.
“Decedent immediately complied with this initial demand and dropped the fake toy gun. After decedent dropped the toy gun, Does 2 and 3 moved to within 15 to 20 feet away from him and shined flashlights directly at him. Decedent appeared confused and appeared to take a tentative step toward his right in the direction of the toy gun he had dropped, and started to bend over, in the direction of the toy gun. Within two to three seconds of decedent leaning over toward the toy gun, defendant Doe 1, who had been safely standing at and/or behind an enclosed trash dumpster approximately 50 feet away from decedent, moved out of his safe location and without any warning to decedent, immediately and abruptly fired three shots at decedent, causing decedent to fall to the ground.”
The suit continued that five or six seconds later, while decedent remained on the ground, Doe 1 fired two more shots at decedent; that less than ten seconds later, Does 2-3, who were standing approximately 15 feet from decedent and in the potential sight line of Doe 1, opened fire on decedent and that Doe 1 fired more shots at decedent, all while he was lying on the ground.
Prior to using lethal force, the suit said the officers did not attempt to assess decedent’s medical condition or mental or psychological state, even though they had been informed, or should have been informed by 911 dispatch, that the decedent was “in the midst of a mental health crisis, had a history of mental illness, and had no weapons.”
The suit further noted that the officers made no effort to stanche the bleeding caused by the gunshot wounds until 11:24 p.m., when one police officer applied a field tourniquet to decedent’s right thigh, where two bullets had entered. For the eight minutes prior to that, the suit stated, the decedent lay on the ground bleeding from gunshot wounds to his right chest, his left chest, his right buttock, his abdomen, his left thigh, his right hand and his left arm.
“The Plymouth Community Ambulance arrived at approximately 11:29 p.m. Decedent was immediately transferred to the ambulance, where he became unresponsive at11:51 p.m. He was transferred to the emergency room, arriving at 12:20 a.m. Despite the efforts of the Plymouth Ambulance, JeffStat and Mercy Suburban Hospital, decedent was pronounced dead as a result of multiple gunshot wounds on Aug. 4, 2021 at 1:34 a.m.,” the suit stated.
“Following decedent’s passing, upon information and belief, defendants disseminated to news organizations and other public entities information it knew or should have known was false and portraying decedent in a false light. News organizations and other public entities did in fact publish the information provided to it by defendants concerning decedent and plaintiffs. Upon information and belief, defendants disseminated information about decedent in an attempt to justify, distort and/or cover up its own conduct.”
UPDATE
The defendants motioned to dismiss the case on Aug. 1 for failure to state a claim upon which relief could be granted.
“However, a Section 1983 action for excessive force is only cognizable against state actor who performed the allegedly excessive act. As a result, there is no vicarious liability under 42 U.S.C. Section 1983; more specifically, the law does not recognize a claim for respondeat superior liability under Section 1983. Therefore, since the complaint avers that the John Doe officers took the actions which plaintiffs claim constituted excessive force and since Plymouth Township may not be held vicariously liable for those acts, this Court should dismiss Count I of plaintiff’s complaint as against Plymouth Township,” the dismissal motion stated, in part.
“The plaintiffs’ averments do not specifically identify the policies or customs upon which the Monell claims are based, do not identify the form they took, nor do the plaintiffs quote any written policies, rules or customs. The allegations do not demonstrate when the policies the plaintiffs supposedly rely upon were formulated, how they came to exist, nor what policymaker or decision-maker allegedly authored them. The averments are insufficient to give rise to a plausible claim that the alleged constitutional violations constituted a regular practice of the City of Philadelphia, or were the result of the defendant’s custom. Instead, plaintiffs seek to attribute the acts of the John Doe officer defendants to the Township, to sidestep the bar on imputed, respondeat superior liability under Section 1983 and to make Plymouth Township liable for the allegedly unconstitutional actions of the unnamed officers.”
As to the state law claims, Plymouth Township cited immunity from them under the Pennsylvania Political Subdivision Tort Claims Act.
For counts of excessive force, procedural due process and substantive due process violating the Fourth and Fourteenth Amendments to the U.S. Constitution, conspiracy to interfere with civil rights, municipal liability for unconstitutional custom or policy, municipal liability – failure to train, neglect, state law claims of survival, wrongful death, assault and battery, defamation, negligent infliction of emotional distress and intentional infliction of emotional distress, the plaintiffs are seeking compensatory and punitive damages, an award of attorneys’ fees and costs, and any other equitable remedy that the Court deems reasonable and just.
The plaintiffs are represented by Howard A. Rosen of H. Rosen Law in Philadelphia, plus Patricia Sons Biswanger in Havertown.
The defendants are represented by Joseph J. Santarone Jr. of Marshall Dennehey Warner Coleman & Goggin, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02178
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com