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Damiani v. Duffy

United States District Court, D. Delaware

October 4, 2017

PABLO A. DAMIANI, Plaintiff,
v.
DETECTIVE DUFFY, et al., Defendants.

          Pablo 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.

          David 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.

          MEMORANDUM OPINION

          Andrews, U.S., District Judge

         Plaintiff 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).[1] 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).[2] Briefing on the motions is complete.

         LEGAL AND FACTUAL BACKGROUND

         Plaintiff 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), [3] 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).

         The 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. (Id.

         at 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 DSP527).

         As 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.).

         ATF 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, A10-13).

         Bouldin, 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.)

         Morrissey 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).

         Once 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).

         According 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).

         Kelly, 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.)

         Plaintiff's 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).

         Plaintiff's 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 ¶ 1).

         When 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).

         Bouldin 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).

         The 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).

         Once 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).

         After 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 ...


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