1Plaintiff has since stipulated that the Philadelphia Police

Department is not a separate corporate entity subject to suit.

2This action was commenced in the Court of Common Pleas of

Philadelphia from which it was removed to this court pursuant to

28 U.S.C. § 1441(b). For reasons not altogether clear, plaintiff

initiated a subsequent action in the Court of Common Pleas of

Philadelphia against defendant Walsh alone in which she asserted

the same claims as those asserted against Mr. Walsh in the

instant case. That case too was then removed to this court where

it has been consolidated with the above action pursuant to Fed.

R. Civ. P. 42(a).

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STACEY STRAUSS : CIVIL ACTION

:

v. :

:

JOSEPH WALSH, FRANK BARKLEY, :

CITY OF PHILADELPHIA and :

PHILADELPHIA POLICE DEPARTMENT : NO. 01-3625

M E M O R A N D U M

WALDMAN, J. December 17, 2002

I. Introduction

Plaintiff was injured when an off-duty Philadelphia

police officer caused another off-duty officer's gun to discharge

while they were socializing in a bar. Plaintiff asserted claims

against all defendants under 42 U.S.C. § 1983 as well as state

law claims for negligence and intimidation.1 Plaintiff asserted

additional state law claims against the individual defendants for

assault, battery and intentional infliction of emotional

distress.2

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 1 of 16
3As it appeared that defendant Barclay would also be

entitled to judgment as a matter of law, particularly on

plaintiff's federal claims, on the same determinative issues if

it were determined that defendant Walsh were so entitled, the

court by order of December 2, 2002 gave plaintiff eleven days to

supplement the record with any relevant evidence or pertinent

submission which might show otherwise. On December 13, 2002, the

parties filed a written stipulation dismissing with prejudice all

claims against defendant Barclay.

2

Presently before the court are the motions of the City

of Philadelphia and Joseph Walsh for summary judgment.3

 II. Legal Standard

In considering a motion for summary judgment, the court

must determine whether "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c). See also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold

Pontiac-GMC, Inc. v. Gen. Motors Corp., 786 F.2d 564, 568 (3d

Cir. 1986). Only facts that may affect the outcome of a case are

"material." See Anderson, 477 U.S. at 248. All reasonable

inferences from the record must be drawn in favor of the nonmovant. See id. at 256.

Although the movant has the initial burden of

demonstrating the absence of genuine issues of material fact, the

non-movant must then establish the existence of each element on

which it bears the burden of proof. See J.F. Feeser, Inc. v.

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 2 of 16
4It is clear from the record that "Barkley" is a misspelling

and that this officer is actually Frank Barclay. Although there

has been no motion or stipulation to correct the caption, the

court will utilize the correct spelling in referring to this

party.

3

Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert.

denied, 499 U.S. 921 (1991). A plaintiff cannot avert summary

judgment with speculation or conclusory allegations, such as

those found in the pleadings, but rather must present evidence

from which a jury could reasonably find in his favor. See

Anderson, 477 U.S. at 248; Ridgewood Bd. of Educ. v. N.E. for

M.E., 172 F.3d 238, 252 (3d Cir. 1999); Williams v. Borough of

West Chester, 891 F.2d 458, 460 (3d Cir. 1989); Woods v. Bentsen,

889 F. Supp. 179, 184 (E.D. Pa. 1995).

III. Facts

From the competent evidence of record, as

uncontroverted or otherwise viewed in a light most favorable to

plaintiff, the pertinent facts are as follow. 

At 9:30 p.m. on the evening of June 2, 2000, plaintiff

and her boyfriend arrived at Pat's Pub in Philadelphia to meet

friends and socialize. Several off-duty police officers

including the two named individual defendants were also

socializing at Pat's after a soccer practice. Defendant Walsh

went to the bar and asked defendant Barclay to watch his canvas

sport bag while he was gone.4 The bag contained his ID, his

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 3 of 16
5There is no evidence of record that Mr. Walsh was aware of

what or how much Mr. Barclay had to drink. Mr. Walsh testified

that he thought Mr. Barclay had just arrived and did not see him

with a drink in his hand.

4

wallet and a loaded Glock Model 17 service pistol which had no

safety. Mr. Walsh told Mr. Barclay that there was a firearm in

the bag. Mr. Barclay does not recall hearing this. Mr. Barclay

had consumed four or five beers at the time.5

Plaintiff approached Mr. Barclay and was talking with

him when, at approximately 10:30 p.m., she heard a loud pop and

felt a searing pain in her right leg which was bleeding. When

plaintiff asked what had happened, Mr. Barclay initially said

that he had set off a firecracker. Mr. Walsh heard the noise and

approached plaintiff and Mr. Barclay. He picked up his canvas

bag. Mr. Barclay then related that he had reached into the

canvas bag to remove the wallet as a practical joke and had

accidentally discharged the firearm as he pulled his hand out of

the bag.

Mr. Barclay followed plaintiff into the ladies room to

check on her leg. He apologized profusely to plaintiff and asked

her not to report the incident as he and others could lose their

jobs. Plaintiff responded "it's okay, I understand that it's an

accident." Plaintiff was also coaxed to withhold the truth by

her boyfriend and other "people outside who [she] do[es] not know

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 4 of 16
6No bullet was removed from plaintiff's leg and it is

unclear whether she was struck by a bullet or by flying debris

from the impact of the bullet.

5

by name or face." Plaintiff was never threatened by anyone in

connection with the incident.

Upon learning her injury had been caused by a firearm,

plaintiff went to the hospital. She was accompanied by her

boyfriend. She reported to emergency room personnel and later to

a police officer who arrived at the hospital that she had been

injured while walking her dog in a nearby playground near a group

of youngsters by what she "thought may be a firecracker."6

Plaintiff testified that she was "afraid" truthfully to

relate what happened "because public opinion was pretty much

against telling the truth" and having lied once, she "was afraid

to go back." Plaintiff told her boyfriend that she did not want

to get the officers in trouble and was "not really hurt that

bad." Mr. Barclay expressed appreciation to plaintiff's

boyfriend upon learning of the story plaintiff told about her

injury and sent plaintiff flowers for which she thanked him. 

Several days later, an anonymous female caller

contacted the police department and reported the incident. The

report was referred to the Internal Affairs Division (IAD) which

then commenced an investigation. In June 2000, the IAD

interviewed plaintiff, the bar owner, his sister who was working

in the kitchen, the bartender and another off-duty police officer

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 5 of 16
6

who had been present. In July 2000, the IAD interviewed

plaintiff's boyfriend. The IAD then apprised the chief of the

Special Investigations Unit of the District Attorney's Office of

the information obtained. She concluded on October 27, 2000 that

no criminal charges against Barclay or Walsh were warranted. The

IAD then interviewed Mr. Barclay and Mr. Walsh on November 3,

2000. 

Several weeks later the IAD rendered a report

concluding that both officers may have violated Police Department

directives including those requiring the use of care in handling

firearms and immediate notification to Police Radio of the

discharge of a firearm. The report was referred for action to

their commanding officer on November 28, 2000.

IV. Discussion

 There is no respondeat superior liability under

§ 1983. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1295

(3d Cir. 1997). A municipality is liable for a constitutional

tort only "when execution of a government's policy or custom,

whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the

injury" complained of. Id. (quoting Monell v. Dep't of Soc.

Serv., 436 U.S. 658, 694 (1978)). See also Williams v. Borough

of West Chester, 891 F.2d 458, 476 (3d Cir. 1989)("[a]

municipality may be liable under section 1983 only if it can be

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 6 of 16
7

shown that its employees violated a plaintiff's civil rights as a

result of a municipal policy or practice"). 

"Policy" is made when a decision-maker with final

authority to establish municipal policy with respect to the

action in question issues an official proclamation, policy or

edict. A "custom" is a course of conduct which, although not

formally authorized by law, reflects practices of state officials

that are so permanent and well-settled as to virtually constitute

law. A decision by an official with final discretionary

decision-making authority, or ratification by such an official of

the acts of a subordinate, can constitute a "policy." See City

of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Pembaur v.

City of Cincinnati, 475 U.S. 469, 480 (1986); Keenan v. City of

Philadelphia, 983 F.2d 459, 468 (3d Cir. 1992); Omnipoint

Communications, Inc. v. Penn Forest Twp., 1999 WL 181954, *10 n.4 

(M.D. Pa. 1999); Callahan v. Lancaster-Lebanon Intermediate Unit

13, 880 F. Supp. 319, 341 (E.D. Pa. 1994).

A municipality may also be liable under § 1983 for a

failure properly to train, supervise or discipline employees when

such failure reflects a policy of deliberate indifference to the

constitutional rights of citizens. See City of Canton v. Harris,

489 U.S. 378, 388 (1989); Carter v. City of Philadelphia, 181

F.3d 339, 357 (3d Cir. 1999). To sustain such a claim, a

plaintiff must show that a responsible municipal policymaker had

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 7 of 16
8

contemporaneous knowledge of the offending occurrence or

knowledge of a pattern of prior incidents of similar violations

of constitutional rights and failed to take adequate measures to

ensure the particular right in question or otherwise communicated

a message of approval to the offending subordinates. See City of

Canton, 489 U.S. at 390; Montgomery v. DeSimone, 159 F.3d 120,

127 (3d Cir. 1998); Simmons v. City of Philadelphia, 947 F.2d

1042, 1059-70 (3d Cir. 1991), cert. denied, 503 U.S. 985 (1992).

A need for training or other corrective action to avoid

imminent deprivations of a constitutional right must be so

apparent that any reasonable policymaker or supervisor would have

taken appropriate preventive measures. See Jones v. City of

Chicago, 787 F.2d 200, 205 (7th Cir. 1986); Fulkerson v. City of

Lancaster, 801 F. Supp. 1476, 1483 (E.D. Pa. 1992), aff'd, 993

F.2d 876 (3d Cir. 1993). It is not sufficient merely to show

that a particular officer acted improperly or that better

training would have enabled an officer to avoid the particular

conduct causing injury. See Simmons, 947 F.2d at 1060. Any

failure to train or supervise adequately, of course, must also

cause the violation about which the plaintiff complains. Id. at

1065.

A plaintiff must show that the cause of his harm was a

constitutional violation and that the municipal defendant was

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 8 of 16
9

responsible for this violation. Collins v. City of Harker

Heights, Tex., 503 U.S. 115, 120 (1992).

Plaintiff contends that she was deprived of her "life

(physical safety), liberty and pursuit of happiness without due

process of law under the Fifth and Fourteenth Amendments" when

Mr. Barclay caused Mr. Walsh's firearm to discharge and that her

right to "freedom from the use of coercion and intimidation" was

violated when she was asked not to report what happened to

protect the individual defendants' jobs.

The Fifth Amendment, of course, does not proscribe

state action. See Bartkus v. Illinois, 359 U.S. 121, 158-59

(1959); Nguyen v. United States Catholic Conference, 719 F.2d 52,

54 (3d Cir. 1983); Huffaker v. Bucks County Dist. Attorney's

Office, 758 F. Supp. 287, 290 (E.D. Pa. 1991). Plaintiff clearly

was not deprived of her life. There is no abstract right to the

pursuit of happiness secured by the Fourteenth Amendment. While

it may be improper and in some circumstances even unlawful, it is

not unconstitutional in the absence of any actual or threatened

retaliation for an official to beseech someone to withhold

information which might jeopardize the official's job. Although

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 9 of 16
7Although she nowhere so specifies, plaintiff is presumably

complaining about a deprivation of substantive due process as she

does not suggest that the infliction of injury to her in the

circumstances may have been proper if some appropriate procedure

had first been employed. As such, plaintiff would have to show

official conduct which was so egregious, outrageous or malicious

as to shock the conscience. See County of Sacramento v. Lewis,

523 U.S. 833, 847 N.8 (1998); Miller v. City of Philadelphia, 174

F.3d 368, 375 (3d Cir. 1999). She has not done so.

10

not so specified, the only discernable constitutional right

remotely implicated is the liberty interest in bodily integrity.7

In any event, Messrs. Walsh and Barclay were not acting

under color of state law when the firearm discharged. Although

off-duty police officers may act under color of state law if they

"purport to exercise official authority," it is well-settled that

"a police officer's purely private acts which are not furthered

by any purported state authority are not acts under color of

state law." Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d

Cir. 1994). That an individual is known to be a police officer

or identifies himself as an off-duty police officer does not

convert his private acts into state action. See Nonnemaker v.

Ransom, 1999 WL 387084, *3-4 (E.D. Pa. May 26, 1999). The

defendant officers were drinking and socializing in a bar after a

soccer practice. Mr. Barclay planned to play a practical joke on

Mr. Walsh by hiding his wallet. At no time during the entire

sequence of events did either officer purport to exercise state

authority. 

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 10 of 16
11

It is also uncontroverted that the firearm was

accidentally discharged. There is no liability under § 1983 for

injury resulting from negligent conduct. See Lewis, 523 U.S. at

848-49; Daniels v. Williams, 474 U.S. 327, 328 (1986) ("the Due

Process Clause is simply not implicated by a negligent act of an

official causing unintended loss of or injury to life, liberty or

property").

One cannot reasonably find from the competent evidence

of record that either named individual defendant violated

plaintiff's constitutional rights. In the absence of any such

violation, the City also cannot be found liable under § 1983.

Moreover, the only basis for municipal liability

asserted is the alleged "policy and/or custom and/or practice of

the City of Philadelphia to inadequately and improperly

investigate citizen complaints of police misconduct; and such

acts of misconduct were tolerated and attempted to be covered up

by coercing and intimidating citizens, including plaintiff

herein, to discourage them from making complaints about police

officers who violated their constitutional rights."

Plaintiff has presented absolutely no competent

evidence from which one could reasonably find that the City has a

policy or custom of inadequately investigating or attempting to

cover up citizen complaints of police misconduct. In this very

case, the IAD promptly responded to an anonymous report and

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 11 of 16
8Plaintiff's suggestion that the personal property exception

is applicable seems dubious in view of state court

interpretations limiting recovery under § 8542(b)(2) to property

losses and not personal injuries. See Kearney v. City of

Philadelphia, 616 A.2d 72, 75 (Pa. Commw. 1992).

12

proceeded reasonably to investigate it to conclusion. The

officers in question were cited for possible violations of

Department directives. Plaintiff suggests that the apparent lack

of investigative activity between the end of July 2000 and

November 2000 may support her claim of a policy or custom of

inadequate investigations and cover-up of citizen complaints of

police misconduct. No reasonable person could so conclude. The

IAD concluded all logical investigation within seven weeks of

receiving a report of the incident except for the interviews of

Messrs. Walsh and Barclay. Those interviews were conducted

promptly after the District Attorney's Office advised that they 

would not be charged with any crime. 

The City contends with considerable force that it has

governmental immunity from liability on plaintiff's state law

claims pursuant to the Political Subdivision Tort Claims Act, 42

Pa. C.S.A. § 8541 et seq.8 

It is an offense to intimidate a crime victim or

witness. See 18 Pa. C.S.A. § 4952. Whether the Pennsylvania

courts would recognize a civil action for such conduct and

whether plaintiff would qualify on the record presented, even if

they did, seems doubtful. Courts applying Pennsylvania law have

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 12 of 16
13

found far more egregious conduct insufficient to satisfy the

stringent requirement of outrageousness and atrociousness

necessary to maintain an intentional infliction of emotional

distress claim. See Hoy v. Angelone, 720 A.2d 745, 754 (Pa.

1998). An essential element of assault is an attempt

intentionally to cause injury or an imminent apprehension of

harmful (or offensive) bodily contact. See Renk v. City of

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994); Sides v. Cleland, 648

A.2d 793, 796 (Pa. Super. 1994). Similarly, an essential element

of battery is an act intended to cause harmful (or offensive)

contact or imminent apprehension of such contact. See Herr v.

Booten, 580 A.2d 1115, 1117 (Pa. Super. 1990). There is no

evidence that any defendant acted with such intent.

Whether Mr. Walsh may have been negligent in entrusting

his bag to Mr. Barclay could turn on his awareness of the amount

of alcohol consumed by Mr. Barclay or of any visible effects

thereof. Whether Mr. Barclay was negligent may turn on what he

knew or reasonably should have understood about the contents of

the canvas bag.

In any event, in the absence of any viable federal

claim, the remaining purely state law claims and issues should be

resolved by the state courts. There are no considerations of

judicial economy, convenience or fairness which provide a

justification for an exercise of supplemental jurisdiction and

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 13 of 16
14

the interests of comity are clearly best served by allowing the

state courts to adjudicate plaintiff's state law claims. See

Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995). The action will thus be remanded pursuant to 28 U.S.C.

§ 1367(c). See City of Chicago v. Intern. College of Surgeons,

522 U.S. 156, 172-73 (1997); Hudson United Bank v. LiTenda

Mortgage Corp., 142 F.3d 151, 157 (3d Cir. 1998); Basile v. H&R

Block, Inc., 897 F. Supp. 194, 199 (E.D. Pa. 1995).

V. Conclusion

Plaintiff's constitutional claims appear contrived in

an effort to embellish a negligence case and in any event are not

supported. The named individual defendants were not acting under

color of law. Even if they were, their conduct would not amount

to a federal constitutional violation. As such, the City also

cannot be found liable under § 1983. Plaintiff in any event has

presented no competent evidence to show any policy or custom of

the City of a disregard for constitutional rights or indeed any

policy or custom of any kind which caused plaintiff's injury. 

Summary judgment will be granted in favor of defendants

on plaintiff's federal claims. Plaintiff's state tort claims

will be remanded. An appropriate order will be entered.

Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 14 of 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STACEY STRAUSS : CIVIL ACTION

:

v. :

:

JOSEPH WALSH, FRANK BARKLEY, :

CITY OF PHILADELPHIA and :

PHILADELPHIA POLICE DEPARTMENT : NO. 01-3625

STACEY STRAUSS : CIVIL ACTION

:

v. :

:

JOSEPH WALSH : NO. 02-4383 

O R D E R

AND NOW, this day of December, 2002, upon

consideration of defendants' Motions for Summary Judgment (Docs.

#7 & 11 at No. 01-3625) and plaintiff's response thereto,

consistent with the accompanying memorandum, IT IS HEREBY ORDERED

that said Motions are GRANTED and JUDGMENT is ENTERED in these

consolidated actions for each defendant and against plaintiff on

her federal claims; and, pursuant to 28 U.S.C. § 1367(c), these

consolidated actions are otherwise REMANDED to the Court of

Common Pleas of Philadelphia for resolution of plaintiff's state

law claims.

BY THE COURT:

 

JAY C. WALDMAN, J.

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Case 2:02-cv-04383-JW Document 4 Filed 12/17/2002 Page 16 of 16