WILLIAMSPORT – A federal judge has refused to issue a default judgment in a case brought by a Bradford County father who witnessed his 15-year-old son being shot and killed by three unknown Pennsylvania State Police troopers last year, and then sued the unknown troopers for what he argues was his son’s wrongful death.
Rodney E. Foust (individually and as Administrator of the Estate of Hunter W.P. Foust) of Wyalusing first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Jan. 26 versus Pennsylvania State Police Officer John Does 1-3.
“In the morning hours of May 4, 2023, Hunter was sent home from school, Northeast Bradford High School, due to allegedly typing words on a school computer found to be offensive. Upon information and belief, Bradford High School officials contacted the Pennsylvania State Police regarding Hunter’s actions. Following his arrival at home, which occurred at or around 11 a.m. on May 4, 2023, he encountered his mother, Angel Bailey, who perceived that he was in emotional distress. On or about 11:30 a.m., Pennsylvania State Police Officer John Doe 1, Pennsylvania State Police Officer John Doe 2 and Pennsylvania State Police Officer John Doe 3 arrived at the home, knocked on the door and requested that they be permitted to talk with Hunter, who had retreated to his bedroom,” the suit stated.
“The PSP Officers left the home the home after advising Ms. Bailey that criminal charges were to be filed against Hunter, due to his alleged typing of offensive computer entries and that he would be required to come to the police station. Soon after the PSP Officers’ departure, Hunter exited the home and proceeded into the adjacent wooded area. Ms. Bailey had realized that Hunter had left and believed that he had taken with him one of his father’s handguns, which prompted her to contact his father, Mr. Foust, in order to advise of her concerns. The PSP Officers, for reasons unknown and with deliberate indifference to Hunter’s known constitutional rights, proceeded to pursue Hunter on foot with weapons drawn.”
The suit continued that at the same time that defendants were pursuing Hunter on foot, the plaintiff arrived at the home and was made aware of this occurrence. The plaintiff, believing that he had an idea of where his son was going, then took a series of back roads toward a wooded area behind his home.
“Mr. Foust parked his truck on an overlooking ridge the area and then personally then witnessed defendants closing in on his son on foot with weapons drawn. In the next moments, Mr. Foust observed one, each or all three of the PSP Officers fire on Hunter, causing him to suffer a fatal injury. At the time he was shot, Hunter was believed to be holding a handgun down towards the ground which was not pointed towards defendants. In the moments before deadly force was used, defendants had specific knowledge that Hunter was emotionally distraught, not thinking rationally and was likely impaired. No exigent circumstances existed requiring the rush to use of deadly force as Hunter did not present a threat to anyone other than himself,” the suit said.
“At no time during the exchange or interaction did Hunter point a weapon at any of defendants, or threaten harm to them or anyone else. Before pursuing Hunter and then killing him, defendants never attempted to obtain assistance from local mental health professionals nor employ any measures to de-escalate the situation. The bullets fired by the PSP Officers caused Hunter to suffer serious and fatal injuries. The above actions of the defendants were all taken with reckless disregard and in deliberate indifference to the decedent, Hunter W.P. Foust. An autopsy was performed on Hunter, which determined that the cause of death was a penetrating gunshot wound to the torso and classified as a homicide.”
Three weeks after the shooting, the Bradford County District Attorney ruled it was justifiable as the defendant officers were in “imminent danger” when Hunter pointed his father’s gun at them – however, the plaintiff insists his son only pointed the gun at the ground, and never at the officers.
UPDATE
On May 2, counsel for the plaintiff motioned for the Court to issue a default judgment against the unknown Pennsylvania State Trooper defendants.
“As a part of undersigned counsel’s pre-litigation investigation into this matter, a complete copy of the Pennsylvania State Police investigative file was requested but was refused to be produced absent the issuance of a subpoena. As a further part of the pre-litigation investigation, a copy of the Bradford County District Attorney’s office investigative file into the shooting death was requested but has not been produced. As a result of the Pennsylvania State Police and District Attorney’s Office’s refusal to provide any investigative materials related to the shooting death, plaintiff cannot identify any of the three individual State Police Officers’ names involved in the shooting and has therefore pleaded and filed a complaint against three John Does as evident in the caption,” the default motion read.
“Plaintiff does, however, have live witnesses in the form of decedent’s father and mother, both of who were witnesses to the surrounding interaction, and in the case of the decedent’s father, the actual shooting death, both of whom have corroborated that three officers pursued decedent on foot before his killing. By letter of July 13, 2023, the Pennsylvania State Police was informed of the Estate’s intention to pursue claims based upon decedent’s death. The Bradford County Coroner’s Office was also placed upon notice of this claim when a request was made for the complete autopsy report, which was provided.”
Yet, the plaintiff explained that a formal response to the complaint has not been filed and “no attorney has entered an appearance for any defendant, nor have any defendants requested an extension of time or communicated with plaintiff or undersigned counsel in any manner” – which led the plaintiff to ask for the rendering of a default judgment from the Court.
However, U.S. District Court for the Middle District of Pennsylvania Judge Matthew W. Brann instead issued a judicial order on May 6 which denied the granting of a default judgment and provided the rationale for his denial.
“There are two fundamental flaws with plaintiff’s motion that require its denial. First, ‘before a plaintiff can obtain a default judgment pursuant to Rule 55(b), a plaintiff must secure an entry of default per Rule 55(a).’ Plaintiff has not obtained an entry of default against defendants, as required by the Federal Rules of Civil Procedure. Second, the motion (and plaintiff’s complaint) suffers from a more fundamental defect. This action is proceeding against three John Doe defendants, with not a single named defendant as a party to this action. It is well established that a ‘Court may not enter a default judgment unless it is satisfied that it has personal jurisdiction over the defendant’ and ‘a prerequisite to the court’s acquiring personal jurisdiction over the defendant is proper service on the defendant of the summons and complaint,” Brann said.
“Consequently, default judgments cannot be entered against unnamed or fictitious parties because they have not been properly served.’ Because none of the named defendants have actually been served, default judgment cannot be granted. This raises a significant concern regarding plaintiff’s complaint. Without any named defendant whatsoever, there is no way for this action to proceed. Plaintiff must name a defendant – whether an individual or entity – for this matter to continue. Consequently, plaintiff is directed to promptly file an amended complaint that includes a named defendant.”
Brann then denied the issuance of a default judgment and ordered the plaintiff to file an amended complaint that includes at least one named defendant, on or before May 20.
For counts of violating the Fourth Amendment to the U.S. Constitution through failure to intervene, survival and wrongful death, the plaintiff is seeking economic, actual and compensatory damages, including attorney’s fees and costs, lost earnings, lost earning potential, severe physical and mental trauma and injuries, pain and suffering, emotional distress and psychological harm.
The plaintiff is represented by John R. Vivian Jr. of the Law Offices of John R. Vivian Jr. and Adam D. Meshkov of Meshkov & Breslin, both in Easton.
The defendants have not yet retained legal counsel.
U.S. District Court for the Middle District of Pennsylvania case 4:24-cv-00155
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com