PHILADELPHIA – A federal judge has denied the Borough of West Chester’s attempt to dismiss a lawsuit from a Luzerne County man who alleged that two of its police officers used excessive force when arresting him nearly three years ago.
Kevin Nieves of Glen Lyon first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 29 versus the Borough of West Chester and Officers Jerry Ferriola and Greg Cugino, all of West Chester.
“On or about November 1-2, 2019, Kevin Nieves was celebrating his birthday with friends in West Chester, Pennsylvania, a suburban college town. Nieves started the evening at Barnaby’s, a restaurant/bar in West Chester, Pennsylvania. After leaving Barnaby’s and going to a different establishment, Nieves realized he did not have his cell phone. Believing he had left it at Barnaby’s he attempted to return to Barnaby’s where he was denied admittance,” the suit said.
“After an exchange with an employee at the door of Barnaby’s, Officers Jerry Ferriola and Greg Cugino were summoned by the Barnaby’s employee. The officers led Nieves to their police car. They then moved Nieves to the rear of the car and tackled him to the ground. It should be noted that Nieves is short (approximately 5’6”) and slight of build (approximately 150 lbs.), while the officers in question are much larger and more powerful that Nieves. While on the ground one of the officers shouted at Nieves, ‘On your belly now.”
Nieves added that since he was in the grasp of both Officers Ferriola and Cugino he was unable to comply, at which point, one of the officers with a closed fist struck him in the head with a closed fist.
“The officers than rolled Nieves onto his belly, with Officer Ferriola placing his knee on Nieves’s back. Nieves complained of injury, but was taken to the police station and not to the hospital to receive medical treatment, despite request by Nieves for the need for same. Following their release, Nieves reported to the emergency room for treatment for the injuries he sustained,” per the suit.
“As a direct result of the above described acts, plaintiff Kevin Nieves suffered injury to his eye, face, head, neck, and back, and bruising over his body and psychological injury, was forced to endure pain, mental suffering, humiliation and embarrassment, was forced to incur medical and legal expenses and was deprived of his physical liberty, all to his great detriment and loss.”
The defendant officers answered the complaint on Feb. 8, arguing that Nieves has failed to plead sufficient facts to establish liability under the Fourteenth Amendment, failed to provide medical attention and intentional infliction of emotional distress, failed to state a claim against the Borough of West Chester and failed to state a claim or punitive damages.
“Plaintiff’s civil rights claim under the Fourteenth Amendment (Counts I and II) should be dismissed under the case of Graham v. Connor, which held that all claims of excessive force in connection with a Fourth Amendment seizure ‘should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach,” the answer stated, in part.
“Plaintiff has [also] not sufficiently pled that the individual officers were deliberately indifferent to plaintiff’s medical needs. Nor has plaintiff sufficiently pled that he suffered from a serious medical condition requiring medical attention of which these officers were aware. To the contrary, plaintiff asserts that he complained of ‘injury’ but notably does not assert that he had a serious injury, because he did not. Furthermore, he alleges that he went to the emergency room after he was released, but again fails to assert that he required medical assistance for a serious medical condition, because he did not have a serious medical condition, nor were the named officers aware of any such conditions. As such, the claim for same must be dismissed.”
The defense also counters that the plaintiff did not allege a Monell violation on the part of the Borough of West Chester, in that he “failed to allege any facts to suggest, let alone establish, the existence of an official municipal policy that caused him injury as required by Monell,” and that “absent from the complaint are any facts that the Borough of West Chester engaged in any wrongdoing.”
The defense added that, in its view, the plaintiff also failed to plead severe emotional distress or any outrageous or extreme conduct on the part of the defendants as required for an intentional infliction of emotional distress count, nor can he recover punitive damages from a municipality, as per settled common law.
Counsel for Nieves responded to the dismissal motion on March 21.
“In both the factual allegations and as set forth in Count I of plaintiff’s first amended complaint, plaintiff avers he was denied medical attention while he was a pre-trial detainee. A plaintiff’s claims for failure to provide medical treatment as a pre-trial detainee are in fact governed by the Fourteenth Amendment,” the response stated, in part.
“Given the defendants do not question the factual predicates for plaintiff’s claim; rather, they only claim the use of the wrong constitutional provision and the argument above and the fact that none of the cases relied upon by defendants factually deal with the issue they raise, defendants’ motion to dismiss should be denied and dismissed.”
The plaintiff’s counsel explained that “given prior instances and complaints of excessive force, the failure to provide transparency as recommended by the 2017 report and the 2021-2024 goals of needing training regarding de-escalation, mental health, special needs and implicit bias, needing to ensure internal department communications are effective with achieving shared understanding about policies, changes and community needs, leads to a conclusion that the Borough of West Chester had…a need to change the policy and provide training to address the use of excessive force.”
“As a result of these policies, customs and practices, including the lack of training, correction of officer misbehavior and lack of transparency, as alleged plaintiff Nieves experienced the officers’ use of excessive force in which two large officers forced a small Hispanic gentleman on the ground, and then, rather than deescalating the situation, punched plaintiff Nieves in the head with a closed fist causing him serious injury,” the response said.
“This would fall directly into the ambit of the type of incidents the customs, policies and practices implemented by the borough and which the Borough is currently addressing and fixing, but unfortunately did not have in place when plaintiff Nieves was seriously injured and allowed for same to occur.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond shot down the defendants’ dismissal motion in an Aug. 16 order.
“Defendants argue that plaintiff’s Fourteenth Amendment claims in Count One should be dismissed because excessive force claims must be brought pursuant to the Fourth Amendment. Defendants are mistaken. Plaintiff alleges that defendants violated both his Fourth and Fourteenth Amendment rights by using excessive force and denying him medical attention. Plaintiff’s excessive force claims are properly brought under the Fourth Amendment and his denial of medical care claims are properly brought under the Fourteenth Amendment. Plaintiff has thus properly pled these claims,” Diamond said.
“Defendants also urge that plaintiff failed adequately to plead a Monell claim against West Chester in Count Two. To make out a Monell claim, plaintiff must plead a constitutional violation that is inflicted pursuant to a specific government policy or custom. To establish a custom, plaintiff must identify a practice that is ‘so permanent and well settled as to virtually constitute law.’ Failure to train may constitute a Monell violation if the failure amounts to ‘deliberate indifference’ to individuals’ rights.”
Diamond added that, in the Court’s view, Nieves has properly pled claims for violations of his constitutional rights.
“As I explained, plaintiff has adequately pled constitutional violations. He has also alleged a specific policy caused this violation – West Chester’s deliberate indifference to its officers’ customary use of excessive force when making arrests. Plaintiff’s allegations include: reports of abuse of police power are routinely ignored; West Chester maintains an inadequate system for reviewing civil rights violations; and West Chester officers have only recently begun receiving ‘refreshing training’ on de-escalation and use of force,” Diamond stated.
“Plaintiff further points to an internal study by the West Chester Borough that identified a lack of reporting of officer complaints. Plaintiff has thus alleged facts that, if true, show that West Chester knew that its officers were inadequately trained on use of force but took no action. This failure to train led directly to plaintiff’s injuries. At this stage, these allegations are sufficient to make out a failure to train claim under Monell.”
For counts of excessive force and municipal custom/practice which violated the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. Section 1983, assault and battery, intentional infliction of emotional distress, the plaintiff is seeking compensatory damages against each and every named defendant herein, jointly and severally, in excess of $150,000; punitive damages against each and every named defendant herein, jointly and severally, in excess of $150,000, attorney’s fees, expert fees, interest, litigation expenses and costs against each and every named defendant herein, plus other and further damages as this Court may deem just and proper under the circumstances and a trial by jury.
The plaintiff is represented by Aaron B. Gorodetzer of Sbarbaro Law Offices, in Exton.
The defendants are represented by Christine E. Munion of William J. Ferren & Associates, in Hartford, Conn.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-04778
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com