Kevin Waugaman v. City of Greensburg ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3767
________________
KEVIN WAUGAMAN,
Appellant
v.
CITY OF GREENSBURG; BOROUGH OF SOUTHWEST GREENSBURG;
BOROUGH OF SOUTH GREENSBURG; OFFICER SHAWN DENNING;
SERGEANT JASON GAIN; SERGEANT BRYAN PAINTER;
OFFICER ROBERT SHAPIRO; LIEUTENANT W. ROBERT JONES;
SERGEANT DONALD COLE; LIEUTENANT KRISTOPHER CHAPPELL;
SERGEANT HENRY FONTANA, JR.
________________
No. 19-3836
________________
KEVIN WAUGAMAN
v.
CITY OF GREENSBURG; BOROUGH OF SOUTHWEST GREENSBURG;
BOROUGH OF SOUTH GREENSBURG; OFFICER SHAWN DENNING;
SERGEANT JASON GAIN; SERGEANT BRYAN PAINTER;
OFFICER ROBERT SHAPIRO; LIEUTENANT W. ROBERT JONES;
SERGEANT DONALD COLE; LIEUTENANT KRISTOPHER CHAPPELL;
SERGEANT HENRY FONTANA, JR.
Bryan Painter,
Appellant
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-17-cv-00330)
District Judge: Honorable Lisa P. Lenihan
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1
on November 13, 2020
Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges
(Filed: January 29, 2021)
________________
OPINION*
________________
SCIRICA, Circuit Judge.
Kevin Waugaman accuses two of the officers at the scene of his March 2015 arrest,
including Sergeant Bryan Painter, of kicking or stomping on him after he was placed in
handcuffs. Painter argues that Waugaman had no tenable basis for this claim and filed a
motion for sanctions under Fed. R. Civ. P. 11. For the reasons discussed below, we will
affirm the District Court’s order granting summary judgment with respect to Waugaman’s
excessive force claim against Painter and the order denying Painter’s motion for sanctions.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
I
Painter was one of the responding officers when Waugaman entered a vacant
residence on March 17, 2015.1 Officer Shawn Denning handcuffed Waugaman, but once
outside Waugaman ran down the street away from the officers. Denning and Painter
pursued Waugaman, Denning caught Waugaman, and the two collided with a parked car—
sending Waugaman’s head through a window. Waugaman alleges that Denning
intentionally or recklessly targeted Waugaman’s head into the car window. Painter then
placed his knee against Waugaman’s buttocks to keep him on the ground and called for an
ambulance.
During the time between hitting the car window and the arrival of paramedics,
Waugaman asserts he was kicked or stomped on by one or more, but not all, of the police
officers at the scene. He alleges Painter was one of the officers who assaulted him.
However, no evidence in the record, including Waugaman’s own deposition, identifies
Painter as an officer who kicked or stomped on Waugaman. Bleeding from hitting the car
window, Waugaman contends the blood in his face obscured his ability to identify the
officers. Waugaman also alleges other officers observed the assault but did nothing to
intervene.
Waugaman filed suit on March 14, 2017 against Officers Jason Gain, Nicholas
Rullo, and Shawn Denning, fourteen John Doe officers, and the three towns that
employed the various officers. In the Second Amended Complaint, Waugaman dropped
1
A neighbor saw Waugaman’s flashlight in the vacant house and called 911.
3
Rullo from the lawsuit and identified the John Doe officers as Painter, Kristopher
Chappell, Donald Cole, Henry Fontana Jr., W. Robert Jones, and Robert Shapiro.
Painter’s attempt to dismiss the lawsuit based on the statute of limitations was denied and
Painter did not file an answer. Waugaman eventually agreed to dismiss Chappell,
Fontana, and one of the towns from the lawsuit.
Defendants filed motions for summary judgment on September 17, 2018. After
Painter’s city of employment, Borough of South Greensburg, was dismissed from the suit,
he filed a motion for Rule 11 sanctions. In May 2019 all remaining parties consented to
the Magistrate Judge’s jurisdiction. The District Court granted summary judgment for all
defendants except Denning on June 7, 2019. The Rule 11 motion was denied on June 18,
2019. Judgment was entered on November 18, 2019 following settlement with, and the
dismissal of, defendants other than Painter in October. This appeal and cross-appeal
followed.2
2
The District Court had jurisdiction over the alleged violation of 42 U.S.C. § 1983 under
28 U.S.C. §§ 1331 and 1343(a). The District Court also had jurisdiction over state tort
law claims through supplemental jurisdiction under 28 U.S.C. § 1367(a). We have
appellate jurisdiction under 28 U.S.C. § 1291.
4
II3
Waugaman fails to identify evidence that would establish a genuine dispute of
material fact regarding allegations that Painter kicked or stomped on Waugaman. Our
precedent requires that “in the face of motion for summary judgment, a § 1983 plaintiff
must produce evidence supporting each individual defendant’s personal involvement in the
alleged violation to bring that defendant to trial.” Jutrowski v. Twp. of Riverdale, 904 F.3d
280, 291 (3d Cir. 2018); see also Williams v. City of York, 967 F.3d 252, 261 (3d Cir.
2020) (“Jutrowski’s central tenet—that a defendant’s § 1983 liability must be predicated
on his direct and personal involvement in the alleged violation—is manifest in our
excessive force jurisprudence.”) (quotations omitted).
Waugaman argues the court erred by not properly crediting his claim that he was
kicked and/or stomped on by some of the officers at the scene. Assuming as true for the
purposes of summary judgment that some officers assaulted Waugaman, there is no
evidence in the record identifying Painter as an assailant.4 Painter denies he kicked
Waugaman. No officer on the scene saw Painter kick Waugaman. No neighborhood
3
We exercise plenary review over the District Court’s summary judgment decision and
review conclusions of law de novo. Sikora v. UPMC, 876 F.3d 110, 113 (3d Cir. 2017).
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party is entitled to judgment as a matter of law when the non-moving party
fails to make “a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
4
Waugaman also objects to the District Court’s rejection of his expert, who indicated the
blood marks on Waugaman’s clothing were consistent with being kicked. The rejection
is immaterial at this stage because we assume Waugaman was in fact kicked.
5
witness saw Painter kick Waugaman. And Waugaman himself stated he could not identify
any officer involved in kicking him.
Allegations in the Second Amended Complaint that Painter kicked Waugaman
cannot be relied upon by Waugaman to overcome summary judgment. Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001) (“The party opposing summary judgment may not
rest upon the mere allegations or denials of the . . . pleading; its response, by affidavits or
as otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.” (quotations omitted)). Because there is nothing in the record,
outside of the pleadings, that shows Painter assaulted Waugaman, there is no genuine
dispute of fact related to Painter’s personal involvement in the assault.5
Given this lack of genuine dispute, Waugaman contends—for the first time in his
opposition to the motion for summary judgment—Painter should instead be held
responsible for a failure to intervene. Waugaman asserts it does not matter whether Painter
actually kicked Waugaman. Instead, Waugaman urges that Painter is liable because even
if he did not assault Waugaman himself, Painter failed to intervene and stop the assault.
The court rejected this argument because the Second Amended Complaint alleged
only that Painter kicked Waugaman, not that Painter failed to intervene. The Second
Amended Complaint instead identified five separate officers who failed to intervene.6 It is
5
The inability to identify any evidence showing Painter was an assailant also fails to
establish a genuine dispute of material fact for Waugaman’s state law tort claims.
6
All five of these identified officers that allegedly failed to intervene were eventually
dismissed from the case. The City of Greensburg and Officers Shawn Denning and
Jason Gain were also part of this dismissal.
6
commonly accepted that a “plaintiff may not amend his complaint through arguments in
his brief in opposition to a motion for summary judgment.” Shanahan v. City of Chicago,
82 F.3d 776, 781 (7th Cir. 1996). Waugaman did not file a motion for leave to amend his
complaint, and the court’s rejection of the de facto attempt to do so in the summary
judgment briefings was not an abuse of discretion because it was in line with the general
rule barring this type of amendment. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.
2004) (“We review a district court’s denial of leave to amend for abuse of discretion.”).
To the extent Waugaman relies on the Sixth Circuit’s decision in Fazica v. Jordan,
926 F.3d 283 (6th Cir. 2019) to support his failure to intervene claim—despite the failure
to plead it—that case is not inconsistent with the District Court’s ruling. In Fazica, the
Sixth Circuit allowed a case to move forward with failure to intervene claims even though
the plaintiff could not attribute particular actions to individual officers and did not
specifically allege failure to intervene. 926 F.3d at 288–90; see generally Amended
Compl., Fazica v. Jordan, 2018 WL 1410807 (E.D. Mich. Mar. 21, 2018) (No. 16-cv-
13563), ECF No. 7. In contrast to Waugaman’s allegations, the Fazica plaintiff alleged
that all defendant officers engaged in “acts or omissions” that violated plaintiff’s
constitutional rights. Amended Compl. ¶¶ 14–15, Fazica v. Jordan, 926 F.3d 283 (6th Cir.
2019) (No. 16-cv-13563), ECF No. 7. She also alleged that each individual officer
assaulted her and acted in concert with each other. Id. ¶¶ 21, 30.
Accordingly, in situations where a plaintiff cannot allocate responsibility for
individual actions among specifically identified defendants, the Sixth Circuit considers
whether the constitutional rights were violated “either by directly using excessive force
7
against [plaintiff] or by observing others doing so and failing to act.” Fazica, 926 F.3d at
290; accord El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020) (construing an
excessive force claim against three officers as a failure to intervene claim against the officer
that did not use force). But Waugaman did allocate responsibility among the defendants
in his Second Amended Complaint. He specifically alleged failure to intervene against
five officers other than Painter7 and separately alleged specific actions of excessive force
against Painter. He cannot change his complaint now.
Finally, Waugaman’s arguments regarding joint and severable liability are
unavailing. For joint and several liability to apply, three requirements must be met: “1) all
defendants must have acted tortiously; 2) the plaintiff must have been harmed by the
conduct of at least one of the defendants, and therefore plaintiff must bring all possible
defendants before the court; and 3) the plaintiff must be unable to identify which defendant
caused the injury.” New Jersey Tpk. Auth. v. PPG Indus., Inc., 197 F.3d 96, 107 (3d Cir.
1999). Because Waugaman has failed to adduce evidence that Painter’s conduct was
tortious or unconstitutional in the first place, joint and several liability is inapplicable.
7
As noted supra note 6, Waugaman voluntarily agreed to dismiss or settle with the five
officers he alleged failed to intervene.
8
III8
The District Court did not abuse its discretion in rejecting Painter’s motion for
sanctions under Fed. R. Civ. P. 11. Rule 11 requires a party presenting a pleading before
the court by “submitting, or later advocating it” to certify after a reasonable inquiry that “it
is not being presented for any improper purpose[;]” the claims and legal contentions “are
warranted by existing law or by a nonfrivolous argument[;]” “the factual contentions have
evidentiary support” or “will likely have evidentiary support after” discovery; and “denials
of factual contentions are warranted on the evidence or . . . are reasonably based on belief
or a lack of information.” Fed. R. Civ. P. 11(b). Courts apply “an objective standard of
reasonableness under the circumstances” to Rule 11’s requirements. Mary Ann Pensiero,
Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988). But the “wisdom of hindsight should be
avoided,” id., and “the Rule must not be used as an automatic penalty against an attorney .
. . advocating the losing side of a dispute” nor used “as a general fee shifting device.”
Gaiardo v. Ethyl Corp., 835 F.2d 479, 482–83 (3d Cir. 1987).
8
We review the District Court’s Rule 11(c) decision for abuse of discretion. Moeck v.
Pleasant Valley Sch. Dist., 844 F.3d 387, 389–90 (3d Cir. 2016). Therefore, “we
evaluate the court’s factual determinations, legal conclusions, and choice of an
appropriate sanction with substantial deference, considering not whether we would
make the same precise determinations, but only whether those determinations are
contrary to reason or without a reasonable basis in law and fact.” Id. (quotations
omitted). “An example of abuse of discretion occurs when a district court base[s] its
ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence.” Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of
Account, 618 F.3d 277, 287 (3d Cir. 2010) (alteration in original) (quotations omitted).
9
The court concluded sanctions were not warranted because Waugaman recalled
being kicked by two men and learned before filing the Second Amended Complaint that
Painter had physical contact with him when Painter placed his knee on Waugaman’s
buttocks. Accordingly, Waugaman “could reasonably believe that Officer Painter could
be one of the kickers because not many officers had physical contact with him.” We find
no error or abuse of discretion in the court’s conclusion that this was a reasonable
determination for Waugaman and his attorneys to make.
Painter objects because the court focused its analysis on what was known at the time
of the filing of the complaint and did not credit his argument that Waugaman’s position
later became untenable. While it is true that after a complaint is filed you can subject
yourself to sanctions if you persist in advocating a legally untenable position, Fed. R. Civ.
P. 11 advisory committee’s note to 1993 amendment; Turner v. Sungard Bus. Sys., Inc.,
91 F.3d 1418, 1422 (11th Cir. 1996), we must give “substantial deference” to the trial court
in these matters, Moeck, 844 F.3d at 390. The court’s conclusion that sanctions were not
warranted is not “contrary to reason or without a reasonable basis in law and fact.” Moeck,
844 F.3d at 390.
Even though it became clear after discovery that no one could personally identify
Painter as having kicked or stomped on Waugaman, the opposition to summary judgment
and briefing on appeal make it clear Waugaman believed his claims against Painter could
be construed in the alternative as a failure to intervene claim. While Waugaman was not
successful in his arguments, those arguments were not patently unmeritorious or frivolous.
See Ario, 618 F.3d at 297 (“Sanctions are to be applied only in the exceptional
10
circumstance where a claim or motion is patently unmeritorious or frivolous.” (quotations
omitted)). Therefore, we hold that it was not erroneous to find sanctions unwarranted.
IV
For the foregoing reasons, we will affirm the District Court’s orders granting
summary judgment on the excessive force claim and dismissing the motion for Rule 11
sanctions.
11