WILLIAMSPORT – A federal judge has dismissed with prejudice a lawsuit brought by the estate of a man who made violent threats against his wife’s nursing home, was involuntarily committed and had his weapons seized, prior to his death, for a failure to prosecute.
U.S. District Court for the Middle District of Pennsylvania Judge Matthew W. Brann initially handed down a split decision on Nov. 14, 2023, with respect to a summary judgment motion filed by The Estate of Edward L. Himmelwright, against Pennsylvania State Police Trooper Benjamin J. Campana.
“Edward Himmelwright made a series of calls to the police threatening to commit a mass shooting at his wife’s nursing home. On June 29, 2019, he left a voicemail warning the State College Police that he intended to ‘open up’ with a gun at the nursing home. Himmelwright next threatened to go on a ‘rampage’ on July 9, 2019. Finally, he called back on July 10, 2019 to indicate that he planned to go to the nursing home with his gun and that he would shoot the police if they came to his house,” Brann said.
“Under Section 302 of the Mental Health Procedures Act (MHPA), an individual can be involuntarily committed for a maximum of 120 hours if it is determined that they are severely mentally disabled. On July 10, 2019, the Pennsylvania State Police obtained a Section 302 warrant to involuntarily commit Himmelwright. While serving this Section 302 warrant, Pennsylvania State Police officers observed firearms and ammunition in his home. After the warrant was upheld, Himmelwright was involuntarily committed on July 10, 2019. Based on these events, defendant then sought and received a search warrant for the guns on July 11, 2019. Campana seized the firearms that same day, but the search warrant provided the Pennsylvania State Police until 10 p.m. on July 12, 2019 to execute it.”
Campana filed a motion for summary judgment on Aug. 22 on two issues: 1) That exigent circumstances justified the July 11, 2019 search and seizure and 2) That sovereign immunity prevents the Estate from maintaining its trespass to chattels claim.
When conducting this analysis, Brann said that courts often consider the six Dorman factors:
• “The gravity of the crime that has been committed”;
• “A reasonable belief that the suspect is armed”;
• “A clear showing of probable cause based upon reasonably trustworthy information”;
• “A strong belief that the suspect is in the premises”;
• “A likelihood that the suspect will escape if not swiftly apprehended”; and
• “Peaceable entry, affording the suspect ‘an opportunity to surrender without a struggle and thus to avoid the invasion of privacy involved in entry into the home.”
“The first and third Dorman factors support Campana’s assertion that exigent circumstances existed. The gravity of threatening mass violence is rather severe and it heightens the urgency of the situation facing the Pennsylvania State Police. This urgency and Himmelwright’s ‘own, admitted words’ also support a finding of probable cause. Actually receiving the July 11 search warrant bolsters this conclusion. The second, fourth, fifth and sixth factors favor the plaintiff. According to the undisputed facts, Himmelwright was involuntarily committed when his firearms were seized. Defendant could not have reasonably believed that Himmelwright was armed on the premises, posed a risk of escape, or was likely to put up a struggle under these circumstances,” Brann said.
“This Dorman analysis provides mixed results. Himmelwright threatened to unleash mass violence and possessed the weapons to do so, but he was involuntarily committed when the search occurred. Further, the Pennsylvania State Police waited until July 11 to request a search warrant and were given until 10 p.m. on July 12 to execute it. These facts certainly raise doubts as to the urgency of the situation. For this reason, the Court will turn to other instances of warrantless searches and seizures for further guidance.”
Brann examined two opposing lines of reasoning that emerged when looking at warrantless searches and seizures under similar circumstances. Under the first series of cases, “securing the suspect terminated any exigency that may have existed”, whereas the second line of cases “suggests that exigent circumstances remain when there is the potential for an individual to harm themselves or others upon their release from custody.”
However, Brann also pointed out that despite authorizing involuntary commitments for individuals that pose a threat of harm to others, the state legislature specifically provided “a reasonable period of time, not to exceed 60 days” for these individuals to relinquish their firearms, under the MHPA.
According to Brann, “questions exist as to whether exigent circumstances authorized this search and seizure,” and thus he denied the summary judgment motion on that point.
On the subject of sovereign immunity, Brann found that it did bar the trespass to chattels claim, since Campana was acting within the scope of his employment.
“Based on the undisputed facts, Campana acted within the scope of his employment. Effectuating a search warrant is exactly the kind of conduct officers are ‘employed to perform.’ Campana also took the relevant actions in his capacity as a Pennsylvania State Police officer. Neither the complaint nor the facts suggest an alternative, improper motive to seize the firearms. The undisputed facts demonstrate that defendant acted in response to what he and the Pennsylvania State Police perceived as a security concern,” Brann stated.
“Even though there are now issues as to the validity of the warrant, that alone does not mean Campana acted outside the scope of his employment. ‘Under Pennsylvania law, even unauthorized acts may be within the scope of employment ‘if they are clearly incidental to the master’s business.’” Only a plausible ‘allegation that the defendant officer knowingly or purposefully’ acted without probable cause would shift this conduct to outside the scope of his employment. Here, the complaint only alleges that Campana entered Himmelwright’s ‘residence without good legal cause to do so.’ Nothing indicates that he purposefully or knowingly executed the warrant without probable cause. Consequently, defendant is entitled to judgment as a matter of law because he acted within the scope of his employment, and sovereign immunity therefore bars this state law claim.”
UPDATE
In an April 11 memorandum opinion, Brann said the case would be dismissed with prejudice for failure to prosecute on the part of the plaintiff.
“Shortly after the Court granted in part and denied in part defendant Benjamin J. Campana’s motion for summary judgment on Nov. 14, 2023, attorney Eric E. Winter requested to withdraw from representing plaintiff, the Estate of Edward L. Himmelwright,” Brann stated.
“The Court approved Mr. Winter’s withdrawal on Dec. 19, 2023 and provided the Estate 60 days to retain other counsel. 60 days passed with no response from plaintiff, and the Court ordered the Estate to show cause by April 4, 2024 why this case should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Again, the Estate has failed to respond; accordingly, the Court shall dismiss this case for failure to prosecute.”
Brann then used the six Poulis v. State Farm Fire Ins. & Cas. Co. factors to consider this latest analysis, which are:
• The extent of the party’s personal responsibility;
• The prejudice to the [adversary];
• A history of dilatoriness;
• Whether the conduct of the party or the attorney was willful or in bad faith;
• The effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions and;
• The meritoriousness of the claims or defense.
“Since the Estate is now a pro se plaintiff, it alone is responsible for its failure to comply with this Court’s orders. This factor therefore weighs in favor of dismissal. Due to the Estate’s failure to engage, defendant faces prejudice as he effectively cannot obtain relief at this stage without the Estate’s participation. Again, this factor weighs in favor of dismissal. When represented by counsel, plaintiff promptly responded to defendant’s motions and the Court’s orders. After the Estate began to represent itself, it has failed to respond to two orders from the Court. Although two years of active engagement would ordinarily weigh in plaintiff’s favor, the intervening loss of counsel and subsequent dilatoriness substantially undermines the persuasiveness of this prior effort. Consequently, this factor also tilts in favor of dismissal,” Brann said.
“As the Estate has failed to respond, no excuse is before the Court. Accordingly, this behavior displays willfulness, and this factor similarly supports dismissal. As noted above, plaintiff has failed to respond to two orders from the Court. In doing so, the Estate has ‘deprived this Court of the ability to fashion, even if appropriate, a less severe and more moderate sanction that might ensure future compliance.’ ‘In the absence of any mitigating circumstances or justification for [its] lack of participation in this matter,’ the Estate’s ‘conduct makes it clear that any other less severe sanction would be ineffective.’ As previously addressed by the Court when resolving the defendant’s motion for summary judgment, issues of material fact exist as to whether exigent circumstances authorized Campana’s search and seizure of the residence at the time of entry. Accordingly, this factor weighs against dismissal.”
Citing the ratio of five Poulis factors to one in favor of dismissal, Brann ordered the case would in fact be dismissed.
“After carefully weighing the six Poulis factors, the Court concludes that five of the factors point in favor of dismissing this case with prejudice. Dismissal is therefore warranted. In accordance with the above, it is hereby ordered that: 1) Pursuant to Federal Rule of Civil Procedure 41(b), this case is dismissed with prejudice for failure to prosecute; and 2) The Clerk of Court is directed to close this case,” Brann said.
The plaintiff represented itself in the latter stages of litigation.
The defendant was represented by Nicole J. Boland of the Pennsylvania State Police, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 4:21-cv-01731
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com