Joyce Daniels v. City of Pittsburgh

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1790
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JOYCE DANIELS,
as Administrator for the Estate of Mark S. Daniels,
Appellant
v.
CITY OF PITTSBURGH;
GINO MACIOCE, in his capacity as a Pittsburgh Police Officer and his individual
capacity
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No.: 2-18-cv-01019)
District Judge: Hon. Cathy Bissoon
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 7, 2023
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Before: CHAGARES, Chief Judge, SCIRICA and RENDELL, Circuit Judges
(Filed: March 30, 2023)
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OPINION∗
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
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge.
Appellant, Joyce Daniels, appeals the District Court’s orders (1) granting summary
judgment in favor of Appellees, the City of Pittsburgh and Pittsburgh Police Officer Gino
Macioce, in her § 1983 action for the fatal shooting of her son, Mark Daniels (“Daniels”),
and (2) denying Appellant’s motion for additional discovery. Because we discern no error
in the District Court’s reasoning, we will affirm.
I.
As we write for the parties who are well-acquainted with the facts of this case, we
set forth the following background only as necessary to resolve this appeal. At the outset,
we note that the relevant factual background in this case is founded upon evidence
adduced by Appellees. Indeed, as we explain below, Appellant’s failure to offer
affirmative evidence to refute the facts as established by Appellees’ evidence is fatal to
her case.
On February 11, 2018, City of Pittsburgh Officer Gino Macioce and field training
Officer Kevin Kisow were on duty in Pittsburgh’s Homewood neighborhood. While
patrolling a parking lot, Officer Macioce became alarmed because, by his account, he
observed a man, later identified as Daniels, acting suspiciously upon exiting a nearby
convenience store. Both officers followed Daniels as he walked down the street and
turned a corner.
Officer Macioce described following Daniels around the corner and encountering
him “with a gun in his hand.” App. at 302. Daniels raised his gun, and Officer Macioce
followed suit by raising his own gun. App. at 303–04. The men fired at one another
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“pretty simultaneous[ly]” but neither were hit. App. at. 27. Daniels fled. Officer Macioce
placed a “shots fired” call over the police radio, and he and Officer Kisow pursued
Daniels. They spotted Daniels standing on a nearby street talking to a woman. Officer
Macioce characterized this behavior as Daniels attempting to “blend in” or “play off” his
having shot at the officers.
Officer Macioce repeatedly commanded Daniels to “get on the ground.” App. at
27, 286–87. Daniels, with his hands stretched out in front of him, began saying, “It
wasn’t me. It wasn’t me.” App. at 27, 287. Officer Macioce continued to command
Daniels to “get on the ground.” App. at 287. Daniels did not comply, but instead turned,
dropped his hands in front of him, and began to flee down an alley. Officer Macioce fired
four shots at Daniels, one of which hit his left arm and fatally severed an artery.
In the course of an investigation, police recovered a gun in the path of Daniels’s
flight, as well as bullet fragments and cartridge casings matching that gun near the
location of Officer Macioce and Daniels’s exchange of gunfire. Officers also interviewed
the firearm’s registered owner who told them that she had purchased the gun for Daniels.
Appellant, as the administrator of Daniels’s estate, sued Appellees under 42
U.S.C. § 1983 for using excessive force against Daniels in violation of his Fourth
Amendment rights. About two months after the close of discovery, Appellant filed a
motion seeking additional discovery, which the District Court denied. Appellees moved
for summary judgment, which the District Court granted. The District Court concluded
that Officer Macioce’s use of force was reasonable under the circumstances and that he
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was also entitled to qualified immunity because his conduct did not violate clearly
established law. This timely appeal followed.
II.
A. Summary Judgment 1
This Court may affirm a grant of summary judgment only if "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). When assessing a summary judgment ruling, this Court must
view all facts “in the light most favorable to the non-moving party, who is ‘entitled to
every reasonable inference that can be drawn from the record.’” Reedy v. Evanson, 615
F.3d 197, 209 (3d Cir. 2010) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782,
788 (3d Cir. 2000)). To defeat a properly supported summary judgment motion, the
nonmovant must show a genuine dispute of material fact that requires trial by
“present[ing] affirmative evidence . . . from which a jury might return a verdict in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The standard also
applies for cases involving deadly force: “Just as in a run-of-the-mill civil action, the
party opposing summary judgment in a deadly-force case must point to evidence . . . that
creates a genuine issue of material fact . . . .” Lamont v. New Jersey, 637 F.3d 177, 182
(3d Cir. 2011) (emphasis added). Because Appellant failed to meet this burden, the
District Court properly granted summary judgment for Appellees.
1
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291. This Court exercises plenary review over a district
court’s grant of summary judgment. Araujo v. New Jersey Transit Rail Operations, Inc.,
708 F.3d 152, 156 (3d Cir. 2013).
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To prevail on her § 1983 claim, Appellant must show that Officer Macioce’s fatal
shooting of Daniels was an unreasonable seizure proscribed by the Fourth Amendment.
Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999). Because “apprehension by the use of
deadly force is a seizure,” the heart of the issue is whether Officer Macioce acted
reasonably. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The Supreme Court has held that
the use of deadly force is reasonable where an officer “has probable cause to believe that
the suspect poses a significant threat of death or serious physical injury to the officer or
others.” Id. at 3. We must judge the reasonableness of Officer Macioce’s actions from the
perspective “of a reasonable officer on the scene,” cognizant of the “split-second
judgments” officers must make in the face of “tense, uncertain, and rapidly evolving”
circumstances. Graham v. Connor, 490 U.S. 386, 396–97 (1989). We must also “avoid
simply accepting what may be a selfserving [sic] account by the officer[s].” Lamont, 637
F.3d at 182 (internal quotation marks omitted). Instead, we look to “the circumstantial
evidence that, if believed, would tend to discredit the police officer[s’] story, and
consider whether this evidence could convince a rational fact finder that the officer[s]
acted unreasonably.” Id. (internal quotation marks omitted).
Appellant urges that a reasonable jury could doubt the veracity of the evidence
Appellees put forth to support the proposition that Officer Macioce acted reasonably. But
those urgings fall short of affirmative evidence sufficient to meet Appellant’s burden in
opposing Appellees’ summary judgment motion. Lamont, 637 F.3d at 182 (providing that
the summary judgment standard is not relaxed in cases involving deadly force); Estate of
Smith v. Marasco, 318 F.3d 497, 517 (3d Cir. 2003) (“[A] party opposing summary
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judgment must present affirmative evidence—whether direct or circumstantial—to defeat
summary judgment, and may not rely simply on the assertion that a reasonable jury could
discredit the opponent’s account.”). The evidence Appellant challenges includes a pole
camera video showing Daniels’s movements after exiting the convenience store, data
showing the timing and location of gunshots fired, Officers Macioce and Kisow’s sworn
statements recounting what happened, and ballistic evidence tying the firearm found at
the scene to Daniels.
Appellant first urges that the pole camera video shows another man headed in the
same direction as Daniels after he exited the convenience store and that this man may
have been the individual who shot at Officer Macioce. But Appellant points to no
evidence in the record to corroborate this assertion. Such “[s]peculation and conjecture
may not defeat a motion for summary judgment.” Jackson v. Danberg, 594 F.3d 210, 227
(3d Cir. 2010) (quoting Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199,
228 (3d. Cir. 2009)). By contrast, the video serves to corroborate Officers Macioce and
Kisow’s accounts in that it puts Daniels at the scene and shows his movements matched
the officers’ descriptions from the moment Daniels exited the convenience store to when
Officer Macioce confronted him. See Scott v. Harris, 550 U.S. 372, 380–81 (2007)
(reasoning that a court on summary judgment should view the facts “in the light
depicted” by an unaltered videotape).
The gunshot location data similarly corroborates the officers’ accounts rather than
undermines them. Appellant urges that data showing Officer Macioce fired first creates a
genuine issue of material fact over whether Officer Macioce’s use of deadly force was
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reasonable. But this data shows, instead, that Officer Macioce was, indeed, shot at before
he fatally shot Daniels. That is, it establishes that there was an exchange of gunfire in
which six shots were fired within two to three seconds. The first three shots were fired
within milliseconds of each other. This evidence not only comports with Officer
Maccioce’s account that he and Daniels exchanged gunfire “pretty simultaneous[ly],”
App. at 27, it establishes a “significant threat of death or serious physical harm to the
officers.” Garner, 471 U.S. at 3.
The Supreme Court in Garner explained that “if [a] suspect threatens [an] officer
with a weapon . . . deadly force may be used if necessary to prevent escape, and if, where
feasible, some warning has been given.” Id. at 11–12. Additionally, “[a]n officer is not
constitutionally required to wait until he sets eyes upon [a] weapon before employing
deadly force to protect himself against a fleeing suspect who . . . moves as though to draw
a gun.” Lamont, 637 F.3d at 183 (quoting Thompson v. Hubbard, 257 F.3d 896, 899 (8th
Cir. 2001)). Under these precedents, Officer Macioce’s conduct was reasonable as he had
been shot at by Daniels earlier in the encounter, he commanded Daniels to surrender
before firing, and he had no reason to believe that Daniels had discarded his weapon
before Daniels turned to flee.
Appellant put forth no affirmative evidence to raise a genuine issue of material
fact as to these events. Indeed, both parties’ trial counsels stipulated that the woman with
whom Daniels was talking before the fatal shooting was neither a reliable witness nor
able to be located despite Daniels’s counsel having purportedly interviewed this witness
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earlier in the litigation. Thus, there is no contradictory testimony from this fact witness
that would serve to challenge Officers Macioce and Kisow’s accounts.
It is also undisputed that bullet fragments and cartridge cases found at the location
of the exchange of gunfire matched a firearm found in the path of Daniels’s flight. The
Allegheny County Police Department interviewed the gun’s registered owner who
admitted she bought the gun for Daniels. Appellant’s only countervailing argument is to
question the veracity of the woman’s account. But again, that argument is not buttressed
by affirmative evidence that would, when viewed in the light most favorable to
Appellant, give any credence to Appellant’s “other shooter” theory and create a genuine
issue of material fact. Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 130 (3d Cir.
1998) (“[I]f a moving party has demonstrated the absence of a genuine issue of material
fact—meaning that no reasonable jury could find in the nonmoving party’s favor based
on the record as a whole—concerns regarding the credibility of witnesses cannot defeat
summary judgment.”).
No rational juror could find that a reasonable officer on the scene lacked probable
cause to believe Daniels—who had shot at the officer moments before and turned to
evade apprehension—posed “a significant threat of death or serious physical injury to the
officer or others.” Garner, 471 U.S. at 3. Because Appellant failed to put forth evidence
showing a genuine dispute of material fact bearing on that conclusion, the District Court
properly granted summary judgment for Appellees. Therefore, we need not reach the
District Court’s qualified immunity analysis, which formed an alternative basis for
granting summary judgment.
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B. Motion for Additional Discovery2
The District Court did not abuse its discretion in denying Appellant’s motion to
extend case management deadlines to allow additional discovery. We “will not upset a
district court’s conduct of discovery procedures absent a demonstration that the court’s
action made it impossible to obtain crucial evidence.” Gallas v. Supreme Ct. of Pa., 211
F.3d 760, 778 (3d Cir. 2000) (quoting In re Paper Antitrust Litig., 685 F.2d 810, 818 (3d
Cir. 1982)). Appellant moved the District Court for additional discovery in January 2021,
two months after the close of discovery and after the District Court had already allowed
an additional 185 days of discovery. In its last order granting a discovery extension, the
District Court cautioned that “no further extensions will be granted.” App. at 23. We
cannot say the District Court abused its discretion in failing to grant this latest extension
request where it gave Appellant sufficient opportunities to seek discovery and Appellant
failed to point to specific evidence discovery might uncover. See ZF Meritor, LLC v.
Eaton Corp., 696 F.3d 254, 297 (3d Cir. 2012) (stating that a “District Court has
considerable discretion in matters regarding . . . case management, and a party
challenging the district court’s conduct of discovery procedures bears a ‘heavy burden’”).
III.
For these reasons, we will affirm the District Court’s orders.
2
We review a district court’s denial of discovery for abuse of discretion. LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 235 (3d Cir. 2007).
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