ALLENTOWN – A federal judge has rendered a split decision regarding a defense motion for judgment on the pleadings in a wrongful death lawsuit filed by a Lancaster woman who says she witnessed her schizophrenic and bipolar son being shot to death by a local police officer.
Miguelina Peña (individually and as Independent Administrator of the Estate of Ricardo Muñoz, deceased) first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 8, 2021 versus the City of Lancaster, County of Lancaster, Lancaster Chief of Police Jarrad Berkihiser, Officer Karson Arnold and unknown police officers. All parties are of Lancaster.
“On Sept. 13, 2020, at around 4 p.m., defendant Arnold responded to a call involving Ricardo Muñoz, who was experiencing a mental health crisis. Upon arrival to Ricardo’s home, defendant Arnold, with no plan and without waiting for backup, alone approached Ricardo’s home,” the suit stated.
“Reacting to defendant Arnold’s presence, Ricardo went from the basement of his home where he had been doing his laundry, to his bedroom upstairs and retrieved a knife that he had kept for self-defense. Ricardo then exited his home, at which time he was immediately shot by defendant Arnold two times. Even after Ricardo had already been shot twice and had been neutralized, defendant Arnold fired his gun into Ricardo two more times. Defendant Arnold killed Ricardo.”
The suit alleged that Ricardo was known by city and county authorities to be suffering from schizophrenia and bipolar disorder, was having a mental health crisis and never directly threatened Arnold – and that the officer failed to first attempt to use less-lethal force in subduing Ricardo, such as a taser or bean bag gun.
“After defendant Arnold shot Ricardo, other police officers arrived at the scene. Upon information and belief, the unknown police officers had no special medical training and yet intervened to prevent Ricardo from getting emergency medical attention by cancelling the ambulance that had previously been dispatched to the scene,” per the suit.
“Video provided by neighbors shows them begging the police officers at the scene to immediately call an ambulance and asking why no medical professionals had been called to assist and to try to preserve Ricardo’s life. The Lancaster coroner pronounced Ricardo’s time of death as 6:35 p.m. Between 4 p.m., when defendant Arnold shot Ricardo and 6:20 p.m., the defendants failed to provide emergency medical services in an attempt to preserve Ricardo’s life.”
Additionally, the suit noted that in the 911 call which led to Arnold appearing at Ricardo’s home, his sister specifically informed the dispatcher that the only assistance required was to “bring Ricardo to the hospital.”
Furthermore, the suit accused the Lancaster Police Department of failing to conduct internal investigations into or discipline officers who use excessive force and have paid millions of dollars to settle such litigation in the past.
Lancaster County filed to dismiss the case against it with prejudice on April 9, 2021, citing a failure to state claims upon which relief could be granted.
“In Count III, plaintiffs allege Lancaster County failed to property train their 911 dispatchers and had a policy, practice, or custom which violated Muñoz’s constitutional rights. But, plaintiffs, however, failed to sufficiently allege a violation by any County employee, or assert a Monell claim against the County,” the dismissal motion read, in part.
“Here, plaintiff brings a claim pursuant to the Fourth and Fourteenth Amendments. To state a Section 1983 claim for excessive force in violation of the Fourth Amendment, ‘a plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.’ Most importantly, it is axiomatic that a plaintiff in a Section 1983 action ‘must show that each and every defendant was ‘personally involved’ in depriving him of his rights.’ Plaintiff failed to tie a County employee to this alleged constitutional harm. As such, Count III must be dismissed with prejudice.”
“Plaintiffs failed to plead the requisite factual detail to establish a Monell claim. Plaintiffs failed to connect a policy or custom which led to the constitutional deprivation. Plaintiffs’ complaint admits the dispatchers warned police that Muñoz was suffering a mental health episode. The constitutional harm is the death of Muñoz; however, there is no custom or policy linking the County to his death.”
Likewise and for similar reasons, Lancaster County argues the plaintiffs’ Monell claim for unreasonable denial of medical care, should also be dismissed, as a constitutional violation was allegedly not shown. Additionally, Lancaster County contends that the suit’s negligent hiring, training, and supervision claim and civil rights claims should also be dismissed.
In a memorandum opinion issued Jan. 5, 2022, U.S. District Court for the Eastern District Court of Pennsylvania Jeffrey L. Schmehl found that Lancaster County should indeed be dismissed from the case – finding that the plaintiff did not “show a deprivation of a constitutional right, and that the constitutional deprivation was caused by a person acting under the color of state law.”
“Plaintiff asserts that the County’s policies, practices, customs, and training, along with their ‘apparent agents,’ the City’s police officers, were responsible for Ricardo’s death. Further, plaintiff argues that the County and City ‘were engaged in a joint venture in responding to the 911 call,’ the police ‘would not have been at the scene and would not have responded in the way [they] did but for the County’s instructions and direction,’ the County ‘failed to dispatch a crisis intervention team,’ and failed to ‘place a hazard on the family’s home for future service calls,” Schmehl said.
“Nevertheless, plaintiff fails to point to any County employee who had personal involvement in the alleged wrongdoing – the shooting – nor does plaintiff point to any policy, practice, custom, or training deficiency that the County had in place that was involved with the shooting. The County of Lancaster does not employ the City of Lancaster’s police officers or anyone who was at the scene of the shooting. The County’s only involvement in this case is the actions of their 911 dispatchers who dispatched the police to the scene and provided information to the police in doing so. The dispatchers had no personal involvement in the later shooting of Ricardo.”
Schmehl added that it was “not the County’s purview, who only employs the 911 dispatchers, to determine whether City police should carry non-lethal equipment” and that the County “may not be held responsible for the tactical decisions of City police officers who are at the scene of an incident.”
“Accordingly, plaintiff concedes to the dismissal of two of the four counts against the County and the Court dismisses the remaining two Monell counts against the County, because the County did not have an employee who had personal involvement in the alleged constitutional harm, the shooting of Ricardo, nor did the County have a policy, practice, custom or training deficiency that caused the police to shoot Ricardo. Therefore, the County’s motion to dismiss is granted and the County is dismissed from the case,” Schmehl stated.
Weeks later, on Feb. 10, the remaining defendants filed a motion for judgment on the pleadings.
UPDATE
Schmehl then issued a subsequent memorandum opinion on Sept. 7, which granted the judgment on the pleadings motion in part and denied it in part.
“Ms. Peña argues that judgment on the pleadings is inappropriate considering differences between the facts alleged in her complaint and those asserted by defendants in their answer. As set forth below, the pleadings, when construed in favor of Ms. Peña, satisfy the first prong of the qualified immunity analysis. To the extent that defendants’ answer contradicts these allegations in a material way, those contradictions preclude judgment on the pleadings as to that first prong. But under current case law, there is no set of facts that Ms. Peña can prove that would satisfy the second prong of the qualified immunity analysis. Accordingly, Officer Arnold is entitled to such immunity as to the shooting of Mr. Muñoz, and the Court must dismiss Count I,” Schmehl said.
“For [the] particular claim [of denial of medical assistance], there is perhaps no issue of fact more material than Mr. Muñoz’s time of death: if it occurred shortly after the shooting, then the window for assessing the officers’ alleged indifference to Mr. Muñoz’s medical needs narrows significantly, and the decision to cancel the ambulance call may not reflect deliberate indifference. The parties’ pleadings and briefing reflect significant dispute as to this circumstance, however, and the coroner’s alleged determination is neither attached to the complaint nor addressed by defendants. On this disputed record, judgment on the pleadings for Count IV is inappropriate. Ms. Peña, who focuses on a pattern of excessive force violations, does not appear to allege that, under the second above theory, Chief Berkihiser knew of denial-of-care violations. She has, however, alleged that Officer Arnold and other responding officers lacked sufficient medical training under the relevant policies and practices; and that this deficiency [both] led to an unlawful denial of medical care and that Chief Berkihiser had the power to correct such deficiencies but, with deliberate indifference, failed to do so. Accordingly, she has stated a claim for liability as to Chief Berkihiser under at least one of the theories of supervisory liability.”
As to Count V, a claim of negligent hiring, training, supervision, and monitoring against the City, the County (who had been dismissed from the case) and Chief Berkihiser, Schmehl found that the plaintiff had stated a valid claim for relief, apart from the negligent hiring claim.
“Turning to the portion of this Count directed to the hiring of Officer Arnold, the Court finds that it must dismiss this basis for relief. To satisfy the deliberate indifference required to hold Chief Berkihiser (or the City, for that matter) liable, Ms. Peña must show that ‘adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right.’ Ms. Peña has offered no allegations concerning Officer Arnold’s background, and accordingly she has failed to plead a claim relating to his hiring. This deficiency likewise precludes finding liability for Chief Berkihiser on the second supervisory theory that he, ‘as the person in charge, had knowledge of and acquiesced in his subordinates’ violations,” Schmehl said.
“Ms. Peña’s claims concerning insufficient training and supervision, however, survive as to Chief Berkihiser. As discussed above, she has alleged that police leadership (presumably including Chief Berkihiser) knew of constitutionally deficient policies and practices, failed to correct them, and implicitly or explicitly approved of them. She has likewise tied these deficiencies to her son’s death. Ms. Peña, therefore, has stated a claim against Chief Berkihiser under his supervisory liability.”
With respect to the counts of municipal liability under both Monell and the Political Subdivision Tort Claims Act, Schmehl decided, contrary to the defense’s assertions, that the plaintiff had indeed put forward plausible claims.
“Defendants…have pointed to their extensive training programs, their complaint-tracking software, and a general lack of judgments against the police for constitutional violations. At the present stage of this case, however, Ms. Peña has not been able to investigate through discovery the sufficiency of defendants’ training, disciplinary system and supervision…Ms. Peña ‘is not engaged in a mere fishing expedition.’ Instead, she claims that the potential deficiencies in how the City responds to its citizens’ mental health crises allegedly caused the death of her son. Accordingly, judgment on the pleadings is inappropriate for Counts II, IV, V, and XI,” Schmehl stated.
“In Counts VI, VII, X and XII, Ms. Peña alleges various intentional torts, including wrongful death, intentional infliction of emotional distress and two counts of battery (for the shooting of Mr. Muñoz and police officers’ subsequent contact with Ms. Peña herself). She brings these claims under Pennsylvania law and without reference to the deprivation of constitutional or federal rights, and because these are therefore not Section 1983 claims, the Court must consider the effect of the PSTCA. Because the alleged emotional distress suffered by Ms. Peña represents another substantially certain result of the alleged misconduct…the Court finds that PSTCA immunity does not apply. Likewise, Ms. Peña alleges that after the shooting of her son, ‘various police officers tackled plaintiff, Miguelina Peña, against a police vehicle, which resulted in serious bruising on her leg.’ At this early stage in litigation, the Court views the restraint of Ms. Peña as a substantially certain outcome of the shooting of her son, and because the Court has found that such shooting, as pleaded, involved willful misconduct, the Court declines to apply PSTCA immunity to Count XII at this time.”
Finally, Schmehl both retained the claim lodged under the Americans with Disabilities Act of 1990 and the possibility for punitive damages.
For multiple counts of excessive use of deadly force, Monell municipal liability – policy and practice, unreasonable denial of medical care, negligent hiring, training supervision and monitoring, state law claims of battery, wrongful death and civil rights violations, violations of the Americans with Disabilities Act, state law intentional infliction of emotional distress and unlawful detention, the plaintiff is seeking general damages, special damages, statutory damages, punitive damages, attorney’s fees, additional damages and injunctive relief connected to related actions in the case, plus such other and further relief as the Court deems just and proper.
The plaintiff is represented by Michael R. Perna of Perna & Abracht in Kennett Square, plus Daisy Ayllon and Javier Rodriguez Jr. of Romanucci & Blandin, in Chicago, Ill.
The defendants are represented by David J. MacMain of The MacMain Law Group, in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-00590
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com