Blakey v. City of Pittsburgh Police Department , 449 F. App'x 135 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3532
___________
JAMAAR A. BLAKEY,
Appellant
v.
CITY OF PITTSBURGH POLICE DEPARTMENT; SGT. ANTHONY VISCOMI;
SGT. KEVIN WILSON; CMDR. THOMAS STRANGRECKI
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 08-cv-01332)
District Judge: Honorable Donetta Ambrose
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2011
Before: FUENTES, GREENAWAY, JR. AND GREENBERG, Circuit Judges
(Opinion filed: August 3, 2011)
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OPINION
___________
PER CURIAM
Jamaar A. Blakey appeals pro se from the District Court’s dismissal of his civil
rights action brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will
affirm.
1
In the early morning hours of October 29, 2006, two Pittsburgh police officers,
Sgts. Anthony Viscomi and Kevin Wilson, observed Blakey driving at a high rate of
speed. The officers followed the car, which ran several stop signs before crashing into a
fence and coming to a stop. Blakey claims that he emerged from the car holding a gun
and began to flee on foot, at which point Sergeant Viscomi shot him in the back and the
back of the head. He was charged with various state law offenses, including aggravated
assault, recklessly endangering another person, and eluding police. Ultimately, the state
charges were dropped in favor of a federal prosecution for possession of a weapon by a
convicted felon. Blakey pleaded guilty and was sentenced to 180 months of
imprisonment.
While incarcerated, Blakey filed a civil rights action in the United States District
Court for the Western District of Pennsylvania, alleging, among other things, that Sgt.
Viscomi used excessive force and that the City of Pittsburgh failed to meaningfully
investigate the shooting. In response, Sgt. Viscomi filed a “Suggestion of Bankruptcy,”
stating that he had filed a voluntary Chapter 7 bankruptcy petition, and that “[a]ll
proceedings against [him] are stayed pursuant to 11 U.S.C. § 362.” Later, the defendants
filed a motion for summary judgment, which Blakey opposed. A Magistrate Judge
recommended granting the motion in favor of the City of Pittsburgh on the ground that
Blakey “has presented nothing beyond his assertion that the investigation in this case was
inadequate.” As to Sgt. Viscomi, however, the Magistrate Judge concluded that summary
judgment was inappropriate because “other than [Blakey’s] visible possession of a
2
weapon and flight, there is no indication in the record that [he] posed a threat to anyone
when [Sgt.] Viscomi made the decision to shoot.” Over Sgt. Viscomi’s objections, the
District Court, by order entered March 25, 2010, granted the motion for summary
judgment in part and denied it in part. The parties filed their pretrial statements and a
settlement conference was scheduled for July 21, 2010. Two days before that date,
however, the District Court dismissed the case with prejudice, noting that “the sole
remaining claim against Sgt. Anthony Viscomi was discharged by operation of the
Bankruptcy case filed on behalf of Sgt. Viscomi on August 4, 2009 by the Honorable
Bruce McCullough, U.S. Bankruptcy Judge.” Blakey asked the District Court to
reconsider the dismissal, arguing that the bankruptcy “only protects Sgt. Viscomi as an
individual,” not to the extent that he was sued in his official capacity. The District Court
denied Blakey’s request, holding that the claim against Sgt. Viscomi in his official
capacity, which was treated as a claim against the City itself, had already been dismissed.
Blakey appealed.1
Blakey raises two issues on appeal. First, he claims that the District Court erred in
concluding that any liability of Sgt. Viscomi arising from the shooting was discharged in
bankruptcy. When a debtor files under Chapter 7 of the Bankruptcy Code, the debtor is
generally granted a discharge from all debts arising prior to the filing of the bankruptcy
1
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
an order granting a motion for summary judgment. Gallo v. City of Philadelphia,
161 F.3d 217, 221 (3d Cir. 1998).
3
petition. 11 U.S.C. § 727(b). Certain categories of debts, however, are excepted from
discharge under 11 U.S.C. § 523(a). The Bankruptcy Rules provide that any creditor may
file a complaint with the court to obtain a determination of the dischargeability of any
debt. Fed. R. Bankr. P. 4007(a). Here, Blakey filed in the Bankruptcy Court an objection
to the proposed discharge of his claims against Sgt. Viscomi. Sgt. Viscomi filed a motion
to dismiss the objection. The Bankruptcy Court granted the motion to dismiss and closed
the adversary proceeding. Blakey did not file a notice of appeal. See In re Professional
Ins. Mgmt., 285 F.3d 268, 281 (3d Cir. 2002) (stating that “[a] bankruptcy court order
ending a separate adversary proceeding is appealable as a final order even though that
order does not conclude the entire bankruptcy case.”). Although Blakey now asks us to
“review the Bankruptcy Court’s decision” on the ground that Sgt. Viscomi’s petition was
filed in bad faith, we cannot do so. Cf. In re Haugen, 998 F.2d 1442, 1447-48 (8th Cir.
1993) (stating that “[b]ecause [the creditor] failed to appeal from the adversary judgment,
we believe [the creditor] must be bound by that judgment’s plain terms”); see also In re
Caterbone, 640 F.3d 108, 113 (3d Cir. 2011) (holding that “the time requirement for
filing a bankruptcy appeal is jurisdictional”).
Blakey also argues that the District Court erred in dismissing his claims against
the City of Pittsburgh. In order for the City to be liable, Blakey would have to show that
it had an established policy or custom that resulted in the alleged constitutional violations
at issue. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). “Official
municipal policy includes the decisions of a government’s lawmakers, the acts of its
4
policymaking officials, and practices so persistent and widespread as to practically have
the force of law.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). When the policy
concerns an alleged failure to train subordinate officers, liability will lie only where a
constitutional violation results from deliberate indifference to the constitutional rights of
persons with whom the officer comes into contact. Grazier v. City of Philadelphia, 328
F.3d 120, 124 (3d Cir. 2003). We have held that the deliberate indifference standard can
apply to allegations of failure to investigate charges that constitutional rights were being
violated. Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995).
Blakey claimed that the investigation into the shooting was inadequate,
emphasizing that the police never asked him for his version of the incident. This
allegation, however, is insufficient to sustain a cause of action against the City. Id.(holding that “vague assertions” about a police department’s “failure to investigate other
wrongdoings” plus reference to “the incident in this case” were not sufficient to establish
a municipal policy or custom giving rise to § 1983 liability). To demonstrate that the
alleged failure to investigate was caused by an existing policy, Blakey points to 18 Pa.
C.S.A. § 508(a)(1), which describes the circumstances in which a police officer may use
deadly force to effectuate an arrest.2 But whether Sgt. Vicomi was justified in using
2
Specifically, § 508(a)(1) provides, in relevant part, that a police officer is
justified in using deadly force when he believes that “such force is necessary to
prevent the arrest from being defeated by resistance or escape; and . . . the person
to be arrested has committed or attempted a forcible felony or is attempting to
escape and possesses a deadly weapon, or otherwise indicates that he will
endanger human life or inflict serious bodily injury unless arrested without delay.”
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deadly force under § 508(a)(1) involves separate considerations from whether the City of
Pittsburgh exhibited deliberate indifference by failing to adequately investigate the
shooting. Notably, there is no evidence to support Blakey’s assertion that the
“investigation ceased” because the City concluded that the shooting was justified under
§ 508(a)(1). Under these circumstances, we conclude that the District Court properly
granted summary judgment in favor of the City of Pittsburgh.
For the foregoing reasons, we will affirm the judgment of the District Court.3
3
Blakey’s motion to introduce documents is granted.
6