CHRISTOPHER J. WARE, Plaintiff,
POLICE OFFICER KIMBERLY DONAHUE and POLICE OFFICER TODD RILEY, Defendants.
Christopher J. Ware, Wilmington, Delaware. Pro Se Plaintiff.
Daniel Foster McAllister, Esquire, City of Wilmington Law Department, Wilmington, Delaware. Counsel for Defendants.
SUE ROBINSON, District Judge.
Plaintiff Christopher J. Ware ("plaintiff'), who proceeds prose, filed this lawsuit alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and raising supplemental state claims. Presently before the court is defendants' motion to dismiss the complaint or, in the alternative, for summary judgment and plaintiff's cross-motion for summary judgment. (D.I. 44, 47) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the court will deny the motions.
Plaintiffs claims arise from actions taken on July 25, 2008 by defendants Wilmington police officers Kimberly Pfaff (nee Donohue) ("Pfaff') and Todd Riley ("Riley") during their investigation of a suspected break-in at plaintiffs residence following the triggering of an alarm system. Plaintiff rented a third-floor room from the owner of property located on Ninth Street in Wilmington, Delaware. The property had a security alarm and that night it activated. Plaintiff heard the alarm, went downstairs and deactivated it, returned to his bedroom and, before he fell asleep, the security company telephoned. Plaintiff told the security company that it was a "false alarm" and that he would contact the owner. The owner told plaintiff that he would contact his girlfriend and have her look into the matter. The owner's girlfriend telephoned and told plaintiff that the property's front door was ajar, and plaintiff asked her to close it. She also indicated that she saw Wilmington Police Department cruisers driving down Ninth Street. At that point plaintiff considered the matter over and returned to sleep. (D. I. 46 at A5, A9, A14-15, A20-22-23, A26; D.I. 51 at 12)
In response to the alarm, three or four Wilmington police officers, including defendants, entered the premises through a door that was ajar. The police announced their presence and slowly searched the premises for burglary suspects or other signs of crime. Plaintiff, who slept with his bedroom door locked for privacy, became aware of the police when he heard radio activity and people walking in the third-floor hallway. Plaintiff testified that, although he heard the police activity, he did not know if someone else had come into the home so he though it best not to announce himself. The police officers came to the final bedroom (plaintiff's) which was the only door in the house that was secured. According to Pfaff, the officers knocked on bedroom's door and announced "Wilmington Police." Plaintiff testified that he never heard the word "police" shouted. The officers kicked in the door with weapons drawn, said "hands, " asked plaintiff who he was, and turned on the bedroom light. Plaintiff was lying on a mattress on the floor, covered with a blanket. The parties disagree whether plaintiff showed his hands. Regardless, the officers removed the blanket from plaintiff who was naked. The bedroom was "sloppy, " but there was nothing in the room, such as weapons or other items, that might be construed as threatening. In dispute is whether plaintiff told the police his name. Plaintiff was ordered to stand and he did. Pfaff recognized plaintiff and told the officers that plaintiff was a bail bondsman. Plaintiff and Riley recognized each other from a court hearing they had attended, although Riley did not know plaintiff's name or where he lived. (D.I. 46 at A28-30, A32, A36-38, A46-47, A49, A79, A81, A95-100; D.I. 51 at 5-6, 10-11, 34; D.I. 54 at 11-13, 23, 35, 41, 63)
Plaintiff testified that he asked to dress but he received no response, and Riley does not recall when plaintiff asked to dress. According to Riley, one of the officers asked for plaintiff's identification. According to plaintiff, he handed over a new driver's license to one of the police officers, that contained the address of the property in question. Pfaff does not recall that plaintiff provided his driver's license and testified that, because he would not provide his identity, she went into his wallet (described by plaintiff as a business card holder) and removed the license. Pfaff later testified that she did not recall how she obtained the license- if she picked up the wallet from the floor or if someone handed it to her, but she knew the license was inside the wallet or something that held the identification. Pfaff testified that if a person was not a threat to her, she would ask them to retrieve their own wallet or their identification but, if they were a threat, then for safety reasons she would be allowed to go into the wallet. Riley testified that plaintiff held the wallet up in the air, and Pfaff took it outside to search for some sort of identifying document. Pfaff testified that another officer radioed in the information on the driver's license and ran a check on it. Riley testified that somehow Pfaff verified plaintiff's name and that he lived at the premises. (D.I. 45 at A39-40; D.I. 51 at 11-12, 16, 36; D.I. 54 at 32, 45, 56, 57-60)
According to plaintiff, a male police officer took plaintiffs driver's license and went next door to speak to a neighbor to corroborate plaintiff's identity. The officer returned and indicated that the neighbor verified that plaintiff lived at the property on Ninth Street. Also according to plaintiff, while the officer was next door, Pfaff took plaintiff's wallet, went through its contents, took the business cards from it, and threw them on the floor. Pfaff does not recall looking at other documents or tossing any of the items from the wallet on the floor. (D.I. 46 at A51, A 100; D.I. 54 at 43, 63)
After the police officer returned and verified that plaintiff resided at the house on Ninth Street, Riley asked plaintiff his name several times. Plaintiff put his head down, and shook it "no, " and did not answer. Plaintiff testified that Riley then placed his forearm around plaintiffs neck (plaintiff refers to this as a trachea hold), pushed plaintiff to the ground, and straddled him. Riley denies assaulting plaintiff or touching plaintiff other than to pull the blanket from him. The parties agree that plaintiff was told he would be arrested if he could not be identified. Until the time that plaintiff was identified, Riley perceived plaintiff as a threat given the alarm, not knowing plaintiff, and plaintiffs uncooperativeness. According to Pfaff, the investigation ended after someone spoke with the owner of the property. After the incident, plaintiff testified that he dressed, while Pfaff was "pretty sure" that plaintiff was allowed to dress earlier. The police left because they no longer considered plaintiff a suspect. Plaintiff did not seek medical treatment as a result of the incident. (D.I. 46, A55-56, 59, A82-84, A88; A51, 18, 29-30, 42, 58; D.I. 54, 14, 44)
III. MOTION TO DISMISS
Defendants move to dismiss pursuant to Fed.R.Civ.P. 37(b)(2)(A) on the grounds that plaintiff failed to comply with a discovery order. Plaintiff opposes the motion. Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure authorizes a district court to impose sanctions, including dismissing an action, should a party fail to obey an order to provide or permit discovery. Wallace v. Graphic Mgmt. Associates, 197 F.Appx. 138, 141 (3d Cir. 2006) (unpublished); see also Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii). "[D]ismissal is a harsh remedy and should be resorted to only in extreme cases, " but "[d]istrict court judges, confronted with litigants who flagrantly violate or ignore court orders, often have no appropriate or efficacious recourse other than dismissal of the complaint with prejudice." Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (internal quotations omitted).
In order to determine whether dismissal is an appropriate sanction, the court weighs six factors as set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), as follows: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than ...