United States District Court, D. Delaware
PABLO A. DAMIANI, Plaintiff,
DETECTIVE DUFFY, et al., Defendants.
A. Damiani, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendants Detective Sean Duffy, Gary Potts, Daniel Grassi,
Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk,
Ronald Kline, Corey Godek, Detective Jack Tsai, Detective
Thomas Rhoades, Detective John Glenn, Rob Kracyla, James
Kelly, Scott Galbreath, and Alfred Parton.
C. Weiss, Acting United States Attorney, and Jennifer Lynne
Hall, Assistant United States Attorney, Wilmington, Delaware.
Counsel for Defendant Casey Bouldin.
Rosamaria Tassone-DiNardo, Esquire, City of Wilmington Law
Department, Wilmington, Delaware. Counsel for Defendant
Detective Stephen Morrissey.
Andrews, U.S., District Judge
Pablo A. Damiani, an inmate at the James T. Vaughn
Correctional Center, Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 389 (1971). He also raises supplemental State law
claims. He appears pro se and has been granted leave
to proceed in forma pauperis. (D.I. 7). Plaintiff
raises excessive force and failure to protect claims against
Defendants. Before the Court are Defendants' Motions for
Summary Judgment. (D.I. 261, 264, 269). Briefing on the
motions is complete.
AND FACTUAL BACKGROUND
commenced this action on December 4, 2012, alleging
violations of his constitutional rights under 42 U.S.C.
§ 1983. (D.I. 2). The Court dismissed the original
complaint, Plaintiff amended numerous times, and the matter
proceeds on the Fourth Amended Complaint ("Amended
Complaint"). (D.I. 214). Named defendants include New
Castle County Police Department Detective Casey Bouldin, who
was acting as a task force officer with the United States
Bureau of Alcohol, Tobacco, Firearms and Explosives;
Wilmington Police Department Detective Morrissey, who was
also assigned to the ATF task force; and State of Delaware
employees Detective Duffy, Detective Gary Potts, Detective
Daniel Grassi, Corporal Lano, Corporal Eric Daniels, Corporal
John Dudzinski, Sergeant Mark Hawk, Detective Ronald Kline,
Detective Corey Godek, Detective Rhoades, Detective Glenn,
Rob Krisilla (i.e., Kracyla),  James Kelly,
Scott Galbreath, and Alfred Parton (collectively "State
Defendants"). Plaintiff alleges Defendants used
excessive force during his apprehension and arrest on
December 6, 2010, and failed to intervene to stop the alleged
excessive use of force, all in violation of his Fourth
Amendment rights. Following his arrest, Plaintiff was
charged, tried by a jury in September 2011 in the Superior
Court of the State of Delaware in and for New Castle County,
and convicted of eighteen counts of robbery in the first
degree, thirty-three counts of possession of a firearm during
the commission of a felony, eleven counts of wearing a
disguise, six counts of conspiracy in the second degree, six
counts of aggravated menacing, eight counts of attempted
robbery in the first degree, and one count of reckless
endangering in the first degree. Damiani-Melendez v.
State, 55 A.3d 357, 358-59 (Del. 2012). He received a
total sentence of 297 years, followed by a period of Level II
probation. (D.I. 271 at ¶ 26).
arrest and conviction occurred after the Delaware State
Police's Fall 2010 investigation of a string of armed
robberies of retail and liquor stores in New Castle County.
(D.I. 263 at Ex. 2 at DSP499-500). The robberies all appeared
to be related, and all involved the use of weapons.
(Id. at DSP499-500, 508). Due to the frequency of
the robberies, members of the State Police and other law
enforcement agencies met on December 6, 2010 for a briefing
on a large-scale effort to catch the perpetrators.
DSP500-01). The law enforcement agencies decided that each
night, teams of two officers would be assigned to as many
area liquor stores as possible, and the officers would wait
until the perpetrators arrived. (Id.). The officers
were told that the perpetrators were armed and that the
getaway car was a dark-colored Honda Civic. (Id. at
officers left the briefing, a call came in at 7:33 p.m.
stating that American Liquors on Old Baltimore Pike had been
robbed. (Id. at DSP501). A second call came in at
8:13 p.m. stating that Tobacco Plus in the Four Seasons
Shopping Center had been robbed. (Id.). At 8:52
p.m., a third call came in stating that Airport News and
Tobacco in Wilmington Manor had been robbed. (Id.).
task force officers Bouldin and Morrissey were assigned to
Silview Liquors on West Newport Pike. (D.I. 263 at Ex. 2 at
DSP502, 527; D.I. 271 at ¶ 1-A4, A9-A10). After the call
about the third robbery, Bouldin saw an individual wearing a
black hooded sweatshirt walk into Silview Liquors. (D.I. 263
at Ex. 2 at DSP527-28). A few minutes later, the person in
the black hooded sweatshirt left the store, started to run,
and stepped into a dark-colored Honda Civic. (Id.).
Morrissey also saw the individual, who was later identified
as Plaintiff, enter and leave the liquor store, move quickly
to his vehicle, and drive away. (D.I. 271 at ¶ 3-4,
who was driving his undercover vehicle, a Dodge Ram pickup,
pulled in behind Plaintiff and began following him. (D.I. 263
at Ex. 2 at DSP527-28). Bouldin called out the Civic's
tag number and was advised by radio dispatch that Silview
Liquors had just been robbed. (Id.). Morrissey, who
was driving his undercover vehicle, a white Ford F-150 truck,
saw the Civic drive away, followed by Bouldin. (D.I. 271 at
¶ 1). As Morrissey pulled out, he heard the radio
dispatcher advise that Silview Liquors had just been robbed
at gunpoint. (D.I. 263 at Ex. 2 at DSP527-28; Ex. 3 at
DSP1031-32; D.I. 271 atA2.)
lost sight of Plaintiff's car during the pursuit. (D.I.
271 at ¶ 2). By this time, several police officers had
joined the pursuit. (Id.). Plaintiff led a caravan
of unmarked police vehicles on a high-speed chase. (D.I. 263
at Ex. 1 at 22; Ex. 2 at DSP528-29; Ex. 3). Plaintiff stated
that he was speeding, traveling in excess of 70 miles per
hour, and trying to lose the cars. (D.I. 263 at Ex. 1 at 71,
185). Plaintiff lost control of the vehicle after he
attempted to execute a U-turn by engaging the emergency
brake. (Id. at 72-73). Plaintiff was stopped near
the entrance of Delaware Park at approximately 9:00 p.m.
(D.I. 263 at Ex. 1 at 27; Ex. 2 at DSP528-29).
Plaintiff's car stopped, undercover police vehicles
blocked the front, rear, and driver's side of the
vehicle. (D.I. 266 at ¶ 19). Daniels' vehicle was
next to the driver's side door of Plaintiff's car.
(Id. at A1). Galbreath's unmarked SUV also
blocked Plaintiff's car. (Id. at A5).
to Potts, all officers were wearing identifying clothing, and
the police cars had police lights. (D.I. 266 at A-19).
According to Plaintiff, however, there were no flashing
lights, and the police were wearing regular clothes. (D.I.
263 at Ex. 1 at 28; Ex. 12 at 15). He could not recall if the
officers were wearing police vests. (D.I. 263 at Ex. 1 at
31). According to Plaintiff, within two seconds, officers
stepped out of their cars and yelled for him to put his hands
up. (Id. at 22-23, 28-29). Also according to
Plaintiff, in the next fifteen or twenty seconds, officers
ordered him to put his hands out of the window, and an
officer cuffed him. (D.I. 263 at Ex. 1 at 23-24, 29-30).
a probation officer, pointed his gun at Plaintiff's car.
(D.I. 266 at ¶ 5). Kelly says that he never left his car
and was told by other officers to duck to avoid any potential
cross fire. (Id. at A12). He did not see any of the
arrest and left the scene after he was told that the
situation was "all clear." (Id.). Parton
drew down on Plaintiff's vehicle with a rifle and
remained there until other officers were able to place
Plaintiff in handcuffs. (D.I. 184-2 at 20; D.I. 266 at ¶
26). According to Parton, Plaintiff did not give up his hands
and resisted arrest. (D.I. 266 at ¶ 26). Parton had no
contact with Plaintiff. (Id.)
driver's side window was partially down. (D.I. 266 at
¶ 19). According to Potts, Galbreath, and Parton, the
officers present gave Plaintiff numerous commands to turn off
his vehicle and show his hands, but Plaintiff did not
acknowledge or respond to the commands. (D.I. 266 at ¶
6, A19, A26). According to Plaintiff, he put his hands up
and, after a little bit, when he saw the guns, put his hands
out the window. (D.I. 263 at Ex. 1 at 23-24; Ex. 12 at 17).
car doors were locked, and the car's windows were tinted
dark so Daniels and Galbreath could not see how many
individuals were inside. (D.I. 263 at Ex. 1 at 32-33; Ex. 2
at DSP529; D.I. 266 at ¶ 1, A6). Daniels was aware that
the robbery suspects were armed. (D.I. 266 at ¶ 1).
Galbreath attempted to open the passenger door, but it was
locked, so he returned to his car to retrieve a Hooligan
tool, which is a heavy-duty, forcible-entry tool.
(Id. at A6). Daniels went to the passenger side of
Plaintiffs car and used his gun to partially break the
window. (D.I. 263 at Ex. 1 at 24, 32-34; D.I. 266 at ¶
Plaintiff put his hands out the driver's side window,
Bouldin handcuffed Plaintiff in front, through the open
window with the door closed. (D.I. 184-3 at 5; D.I. 263 at
Ex. 1 at 23-24; Ex. 2 at DSP529-30; D.I. 266 at ¶ 19).
Bouldin held on to the cuffs while another officer moved a
police car that was blocking Plaintiff's driver's
side door. (D.I. 263 at Ex. 1 at 24-25; Ex. 2 at DSP529-30).
Dudzinski arrived around this time. (D.I. 266 at ¶ 395).
According to Potts and Daniels, Plaintiff refused commands to
get out of the car, continued to move around in the
driver's seat, lowered his hands so that there were out
of sight below the dashboard, and had to be physically
removed from his vehicle. (Id. at A2, A19). Daniels
came around to the driver's side and pointed his gun at
Plaintiff. (Id. at A2).
continued to hold onto the handcuffs as two or three officers
approached. (D.I. 184-3 at 5). Either Daniels or another
officer opened Plaintiff's car door to remove Plaintiff
from the vehicle. (D.I. 266 at ¶ 2). Dudzinski recalls
assisting in this process. (Id. at A395). According
to Plaintiff, an officer, unidentified by Plaintiff, said to
Plaintiff, "When I open this door, you are to fall face
first on the ground, " and Plaintiff replied, "No
problem." (D.I. 263 at Ex. 12 at DSP966). As one of the
officers opened the door, Bouldin continued to hold onto the
handcuffs, and two of the officers tried to grab Plaintiff
from the vehicle. (D.I. 184-3 at 5). Bouldin released the
handcuffs and moved to the passenger side of the vehicle to
help clear the rest of the vehicle. (D.I. 184-3 at 5; D.I.
263 at Ex. 14 at 9). At this point, Bouldin heard, "my
foot is stuck" or "his foot is stuck." (D.I.
263 at Ex. 14 at 9-10). Plaintiff testified that the officers
initially could not remove him from the car because his right
sneaker was caught on the seat adjustment lever, and this
made it difficult for the officers to pull him out. (D.I. 263
at Ex. 1 at 25, 49, 202-03). Plaintiff stated that he cut his
heel on the lever as he was pulled out because the lever was
sharp and missing its plastic cover. [Id. at 49).
officers pulled Plaintiff out of his car and onto the asphalt
in seconds. (D.I. 263 at Ex. 1 at 25, 36, 40, 202-03; Ex. 13
at DSP1153). Daniels grabbed onto Plaintiff, and Plaintiff
fell "hard" face first onto the asphalt. (D.I.
184-2 at 25; D.I. 266 at ¶ 2). According to Daniels, it
was "real hard" because the officers did not know
the proximity of the weapon or anything at that point in
time. (D.I. 184-2 at 25). Once Plaintiff was on the ground,
Daniels was on the ground near Plaintiff's left arm, in a
"catcher's mitt position" to make sure that
there was not extra weight on Plaintiff. (D.I. 184-2 at 25;
D.I. 266 at ¶ 2). Potts states, at this point, Plaintiff
had not yet been patted down and thus posed a threat to the
officers' safety. (D.I. 184-2 at 12). Dudzinski states
that at this point, he had no idea if Plaintiff was armed and
that he would not know until Plaintiff was frisked, which
occurred some time after his removal from the car. (D.I. 266
at ¶ 396). Plaintiff testified that, after he was taken
to the ground, "three, maybe four" officers kicked
and hit him with a "metal thing" in the head, face,
chest, stomach, and legs, and called him names. (D.I. 263 at
Ex. 1 at 25-26, 51-52). He could not remember how long the
kicking continued, but it was "not even" a minute.
(Id. at 57-58).
Plaintiff had been removed from the vehicle and the passenger
side had been cleared, Bouldin returned to his vehicle. (D.I.
263 at Ex. 2 at DSP530; Ex. 14 at 10). Bouldin states that he
did not see anyone use excessive force on Plaintiff. (D.I.
263 at Ex. 14 at 4-6, 9-10).
Plaintiff had been taken into custody, Galbreath returned
with the Hooligan tool and used it break out the passenger
window. (D.I. 266 at ¶ 6). According to Galbreath, he
never went near Plaintiff once he was removed from the
vehicle. (Id.). Once ...