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Estate of Smith v. Marasco

January 29, 2003

ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBERT C. SMITH; DANA SMITH; WANDA SMITH
v.
TROOPER JAMES MARASCO; TROOPER NICHOLAS SCIANNA; TROOPER THOMAS WEAVER; TROOPER ANDREW L. WENGER; CAPTAIN MICHAEL J. MARCANTINO; LIEUTENANT BERRY REED; LIEUTENANT EDWARDS; LIEUTENANT SCHAEFFER; LIEUTENANT SNYDER; ROBERT JOHNSON; DANTE ORLANDI, CORPORAL; THOMAS GREGORY HALL, CORPORAL; TEDESCUNG L. BANDY, CORPORAL; BARRY L. BRINSER, TROOPER; GREGORY BROADDUS, TROOPER; CARBONELL, TROOPER; COLON, CORPORAL; JOHN R. COMERER, JR., CORPORAL; GLENN C. DOMAN, CORPORAL; JOHN EDWARDS, TROOPER; WAYNE S. ELSER, CORPORAL; FRANK L. FETTEROLF, LIEUTENANT; DAVID FRISK, CORPORAL; GILLISON, CORPORAL; JAMES A. HAMILL, CORPORAL; MARTIN L. HENRY, III, CORPORAL; JOSEPH KALIS, TROOPER; A. J. KRAWCZEL, CORPORAL; WILLIAM J. MCCLURE, TROOPER; THOMAS MCDANIEL, SERGEANT; SHAWN MELL, TROOPER; ARTHUR MOSS, JR., TROOPER; WILLIAM MOYER, TROOPER; ED MURPHY, TROOPER; KEVIN REICHERT, CORPORAL; CHARLES RODGERS, SERGEANT; MERVIN RODRIQUEZ, CORPORAL; THOMAS RODRIQUEZ, TROOPER; KEITH A. STONE, TROOPER; GREGORY STUMPO, TROOPER; DOMINIC G. VISCONTI, TROOPER; WILLIAM WHITE, CORPORAL; JOSEPH WILSON, CORPORAL; GREGORY WIRTH, TROOPER; MICHAEL WITMER, CORPORAL; KENNETH YODER, CORPORAL; JOHN DOE #1-25, WHOSE NAMES ARE CURRENTLY UNKNOWN
ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH; DANA SMITH; WANDA SMITH, APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania (Civ. No. 00-CV-5485) Honorable Franklin S. Van Antwerpen, District Judge

Before: Mckee and Greenberg, Circuit Judges, and Lifland, District Judge *fn1

The opinion of the court was delivered by: Greenberg, Circuit Judge

As amended February 11, 2003.

ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBERT C. SMITH; DANA SMITH; WANDA SMITH
v.
TROOPER JAMES MARASCO; TROOPER NICHOLAS SCIANNA; TROOPER THOMAS WEAVER; TROOPER ANDREW L. WENGER; CAPTAIN MICHAEL J. MARCANTINO; LIEUTENANT BERRY REED; LIEUTENANT EDWARDS; LIEUTENANT SCHAEFFER; LIEUTENANT SNYDER; ROBERT JOHNSON; DANTE ORLANDI, CORPORAL; THOMAS GREGORY HALL, CORPORAL; TEDESCUNG L. BANDY, CORPORAL; BARRY L. BRINSER, TROOPER; GREGORY BROADDUS, TROOPER; CARBONELL, TROOPER; COLON, CORPORAL; JOHN R. COMERER, JR., CORPORAL; GLENN C. DOMAN, CORPORAL; JOHN EDWARDS, TROOPER; WAYNE S. ELSER, CORPORAL; FRANK L. FETTEROLF, LIEUTENANT; DAVID FRISK, CORPORAL; GILLISON, CORPORAL; JAMES A. HAMILL, CORPORAL; MARTIN L. HENRY, III, CORPORAL; JOSEPH KALIS, TROOPER; A. J. KRAWCZEL, CORPORAL; WILLIAM J. MCCLURE, TROOPER; THOMAS MCDANIEL, SERGEANT; SHAWN MELL, TROOPER; ARTHUR MOSS, JR., TROOPER; WILLIAM MOYER, TROOPER; ED MURPHY, TROOPER; KEVIN REICHERT, CORPORAL; CHARLES RODGERS, SERGEANT; MERVIN RODRIQUEZ, CORPORAL; THOMAS RODRIQUEZ, TROOPER; KEITH A. STONE, TROOPER; GREGORY STUMPO, TROOPER; DOMINIC G. VISCONTI, TROOPER; WILLIAM WHITE, CORPORAL; JOSEPH WILSON, CORPORAL; GREGORY WIRTH, TROOPER; MICHAEL WITMER, CORPORAL; KENNETH YODER, CORPORAL; JOHN DOE #1-25, WHOSE NAMES ARE CURRENTLY UNKNOWN
ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH; DANA SMITH; WANDA SMITH, APPELLANTS

On Appeal from the United States District Court for the Eastern District of Pennsylvania (Civ. No. 00-CV-5485) Honorable Franklin S. Van Antwerpen, District Judge

Jordan B. Yeager (argued) Boockvar & Yeager 714 Main Street Bethlehem, PA 18018 Attorneys for Appellants

D. Michael Fisher Attorney General J. Bart DeLone (argued) Senior Deputy Attorney General Calvin R. Koons

Senior Deputy Attorney General John G. Knorr, III Chief Deputy Attorney General Chief, Appellate Litigation Section Office of Attorney General

15th Fl., Strawberry Square Appellate Litigation Section Harrisburg, PA 17120 Attorneys for Appellees

Before: Mckee and Greenberg, Circuit Judges, and Lifland, District Judge *fn1

The opinion of the court was delivered by: Greenberg, Circuit Judge

PRECEDENTIAL

Argued November 7, 2002

OPINION OF THE COURT

This matter comes on before this court on an appeal by the plaintiffs, the Estate of Robert Smith, Pauline Smith, Dana Smith, and Wanda Smith, to whom we refer collectively as the "Smiths," from the district court's order entered January 14, 2002, granting summary judgment in favor of the defendants, 46 specifically named and 25 John Doe employees of the Pennsylvania State Police. The Smiths also appeal from the district court's orders of September 17, 2001, October 12, 2001, November 15, 2001, and November 30, 2001, to the extent that they denied their requests to take additional depositions and to extend the time for discovery. For the reasons stated herein, we will affirm in part and reverse in part the district court's order granting summary judgment and will affirm its discovery orders without prejudice to the Smiths seeking to reopen discovery on the remand we are ordering.

I. BACKGROUND

Decedent Robert Smith, a former police officer and Vietnam veteran, suffered from various medical problems, including Post-Traumatic Stress Disorder ("PTSD") and coronary heart disease. Several members of the state police were familiar with Smith, largely as a result of ongoing problems between Smith and his neighbor, Michael Shafer. Prior to the events giving rise to this litigation members of Troop L of the state police had investigated a number of complaints Shafer and Smith had lodged against each other. Smith also had complained numerous times about the conduct of Troop L members, and the state police at one point had charged Smith with making false reports to law enforcement and harassment. The Smiths allege that through these contacts the state police came to know that Smith was in fragile physical and mental health, had a major heart condition, had undergone knee replacement surgery, suffered from hypertension, recently had been hospitalized, and was required to be free from stressful situations and to take medication. Several troopers stated in their depositions, and police event logs confirm, that certain troopers were aware that Smith suffered from PTSD and experienced flashbacks.

The events directly resulting in this litigation started on July 10, 1999, when, in response to a complaint by Shafer, Troopers James Marasco and Nicholas Scianna of Troop L went to Smith's residence at approximately 10:30 p.m.*fn2 Marasco responded to Shafer's complaint even though Smith's residence was outside his assigned geographic patrol area. The troopers did not have an arrest warrant or a search warrant. In an attempt to contact Smith, they repeatedly knocked on his door, but he did not respond. They then called the barracks and spoke to Corporal

Mervin Rodriguez ("M. Rodriguez") who advised them to have the residence telephoned and to leave if there was no answer. The call was made but was not answered. Marasco and Scianna, however, did not leave, but instead went to the back of the house searching for Smith.*fn3

Scianna testified that while in the back of the house he observed a small red light in a window and thought that Smith might be videotaping the officers. Marasco testified that he saw the light on Scianna's body, and written reports state that the troopers believed that Smith was directing a laser-sighted firearm at Scianna.*fn4 The Smiths dispute this account, noting that the troopers never saw a firearm. Moreover, the Smiths point to contradictory statements concerning where on Scianna's body they allegedly saw the red light, the location of the officers when they first saw the light, and whether the light was emanating from Smith's or Shafer's home. In any event, the officers retreated and called for back-up assistance. M. Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez") responded and unsuccessfully attempted to communicate with Smith over a police vehicle's public address system and by telephone. M. Rodriguez then called state police Lieutenant Fetterolf to request assistance from the state police's Special Emergency Response Team ("SERT").

Fetterolf agreed and contacted Corporal Hall of SERT, who, with Captain Torkar, activated SERT.

Fetterolf testified that at the time he agreed to activate SERT, he considered the scenario to be a "barricaded gunman" situation. He also testified, however, that the circumstances did not lead him to believe that a gun might be involved, or even that someone was barricaded in Smith's home. Hall testified that SERT should not have been activated unless officers had prepared or were in the process of preparing a warrant, or if there were exigent circumstances. Nevertheless the state police activated SERT before they made the decision to obtain a warrant even though, in Hall's opinion, exigent circumstances did not exist.

Before SERT arrived, several officers began to establish a perimeter around Smith's residence. M. Rodriguez testified that at some point he and T. Rodriguez saw an individual they believed to be Smith walk from the residence to a shed in the backyard. The individual did not respond to their calls and they did not identify him positively as Smith.

SERT responded with a negotiation team and a tactical team. It appears that at least 30 SERT members wearing riot gear and camouflage and armed with various weapons were present. Sharpshooters targeted firearms at the house, a helicopter hovered overhead, and the state police would not allow anyone, even family members, to come or go to the premises without police permission. SERT unsuccessfully attempted to contact Smith by telephone and over the PA system. Smith, however, did contact his daughter Dana on the telephone, telling her that there were state troopers outside his house. Dana later advised the state police Personal Communications Officer ("PCO") of this call.

In the early morning of July 11, 1999, Trooper Weaver, the on-duty criminal investigator, filed criminal charges of aggravated assault, simple assault, and recklessly endangering a person against Smith and obtained a warrant for his arrest. Moreover, Trooper Andrew Wenger obtained a search warrant for Smith's premises. According to the Smiths, SERT rejected offers from family, friends, and neighbors to attempt to communicate with Smith and prevented Chris Zwicky, a neighbor familiar with the woods near Smith's house, from searching for Smith. They also chose not to record a message from anyone close to Smith, despite having technology to do so, and decided not to utilize Dana Smith as a mediator, despite her having received a call from Smith asking her to do so. Finally, SERT rejected the use of a psychologist.

SERT then entered and cleared the house and the shed in the backyard using rocks, tear gas, and "flash bang" distraction devices. Nevertheless the police did not find anyone in either structure. They did, however, recover eight weapons including handguns with scopes, though none had a laser sight. The officers also found a video cassette and a camcorder, which they seized after obtaining a warrant, as well as Smith's wallet, identification, cash, credit cards, keys, false teeth and medication he was required to take by reason of recently having had triple bypass surgery. After learning that Smith had a hunting hideout in the woods,

SERT searched the wooded area adjacent to Smith's residence with Zwicky's aid.*fn5 Having failed to locate Smith, the officers called off the search and, around midday on July 11, 1999, left the scene.

On July 12, 1999, the complaint against Smith was withdrawn. That same day, Smith's brother filed a missing persons report because Smith had not returned home. The parties dispute the nature of the search effort over the next days. The defendants presented records indicating that Marasco and Corporal Elser conducted a foot search for

Smith on July 14, 1999; that Corporal Schell conducted an aerial search in a state police helicopter and interviewed neighbors; that Wenger inquired into Smith's cell phone records to determine if the phone had been used; that, on July 15, 1999, Elser contacted the Lebanon Veterans Administration Hospital in an effort to locate Smith; and that, on July 16, 1999, members of the state police searched the wooded area behind the Smith residence, describing that area as impenetrable, though they eventually found Smith's cell phone.

On the other hand, the Smiths proffer evidence indicating that the police did not treat Smith like an armed fugitive or missing person by, for example, conducting a house-to-house inquiry or a sustained search, trying to contact family or friends, or checking with local hospitals or commercial establishments. They also proffer expert testimony suggesting that the officers' conduct in the days following the incident, as well as during the incident itself, fell below accepted standards of police practice. They note that, according to police records, the July 14, 1999 search lasted only 35 minutes and extended only 4 to 5 feet into the woods, that the police failed to use any maps, diagrams, photos, or compass during their July 16, 1999 search, and that the police rejected requests by family and friends to use available search dogs.

The Smiths also suggest that police actually located Smith's cell phone earlier than July 16, 1999, pointing to Smith's brother's testimony to the effect that Weaver mentioned finding the phone on July 13, 1999. They assert that the police hid this discovery, as well as the discovery of Smith's body at some point prior to July 18, 1999. They proffer evidence suggesting that police on July 11, 1999, were in the part of the woods where Smith's body later was found; that the police helicopter, which was equipped with heat sensors designed to locate bodies, hovered above this spot for an extended period of time; that police were searching that location at the same time Smith's cell phone received an incoming call; and that clippings of brush cut back by police were found within ten to 15 yards of Smith's body. Furthermore, they submit that if the police did not recover the phone until July 16, 1999, there is no way they could have failed to smell the odor of Smith's decomposing corpse, which later was found only ten to 15 yards from the place where they recovered the phone. Id. Forensic pathologist Sanford Edberg stated in his report that a person should have been able to notice the smell and the buzz of flies within one day from a distance of ten to 20 yards.

On July 18, 1999, Smith's friend, Alan Achey, found Smith's severely decomposed body in a wooded area approximately 200 yards from Smith's home. Edberg estimated that Smith died sometime between 11:50 a.m. and 11 p.m. on July 11, 1999, and concluded that, given Smith's medical condition, the stress of the incident probably led to a fatal heart attack.

The Smiths brought this action in the district court pursuant to 42 U.S.C. S 1983, alleging that the defendants violated Smith's rights under the First, Fourth, and Fourteenth Amendments. The Smiths also included wrongful death, survival and intentional infliction of emotional distress claims under state law. After extensive discovery proceedings, the defendants moved for summary judgment on July 27, 2001, both on the merits and on the basis of qualified immunity. On September 17, 2001, the district court granted the Smiths' motion to extend discovery pursuant to Fed. R. Civ. P. 56(f), but on October 12, 2001, the district court denied the Smiths' appeal from an order of the magistrate judge denying their request to take more than ten depositions, a limitation the magistrate judge earlier had imposed. On November 15, 2001, the district court denied the Smiths' renewed motion to take additional depositions and for an extension of time for discovery and then, on November 30, 2001, denied the Smiths' renewed Rule 56(f) motion. On January 14, 2001, the district court again denied the Smiths' renewed motions to take additional depositions and to extend discovery, granted the defendants' motion for summary judgment on all section 1983 claims on the merits mentioning, but not predicating its decision on, the qualified immunity arguments. The court dismissed the state law claims without prejudice. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

A. JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. SS 1331, 1343, and 1367 in that the complaint alleged federal civil rights claims under 42 U.S.C. S 1983 and supplemental state law claims. On January 14, 2002, the district court entered final judgment in the case, and on February 8, 2002, the Smiths timely filed ...


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