1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GRACE JIMINEZ, as :

Administratrix of the Estate of :

SALVADOR PETER SERRANO, :

and BROOKE E. MORGAN : CIVIL NO. 4:04-CV-1897

:

Plaintiffs, : (Judge McClure)

:

v. :

:

ALL AMERICAN :

RATHSKELLER, INC., d/b/a :

THE RATHSKELLER BAR, :

BOROUGH OF STATE COLLEGE, :

d/b/a STATE COLLEGE POLICE :

DEPT., PHYLLIS H. GENTZEL, :

d/b/a THE GENTZEL :

CORPORATION, BLUEBIRD :

ENTERTAINMENT ENTERPRISE, :

d/b/a THE DARK HORSE, JASON :

ROSENGRANT, RYAN :

ROSENGRANT, CHRIS :

ROSENGRANT, CURTIS :

ROSENGRANT, COLIN :

HAUGHTON, and ASSOCIATED :

PROPERTY MANAGEMENT, INC. :

d/b/a ASSOCIATED REALTY :

PROPERTY MANAGEMENT, :

:

Defendants, :

M E M O R A N D U M

June 2, 2006

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BACKGROUND:

Plaintiffs Grace Jiminez, administratrix of the estate of Salvador Peter

Serrano, and Brooke E. Morgan, Serrano’s fiancée, initiated this action by filing a

complaint on August 25, 2004. An amended complaint was filed on October 4,

2004. Plaintiffs filed a second amended complaint on August 11, 2005. The

second amended complaint added defendant Associated Property Management

Inc., d/b/a Associated Realty Property Management (“ARPM”) to the previously

named defendants.

On September 27, 2005, we granted plaintiffs’ motion to dismiss defendant

Bluebird Entertainment Enterprise, d/b/a The Dark Horse, and dismissed all claims

and cross-claims against Bluebird Entertainment Enterprise.

On May 2, 2006, we granted plaintiffs’ unopposed motion for settlement and

dismissed all claims against defendants Phyllis H. Gentzel, d/b/a The Gentzel

Corporation and Associated Property Management, d/b/a Associated Realty

Property Management.

Now before the court is defendant Borough of State College (“State

College”) d/b/a State College Police Department’s (“SCPD’s”) motion for

summary judgment. For the following reasons we will grant State College’s motion

and enter judgment in favor of defendant Borough of State College and against the

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plaintiffs as to counts I, II, and XI.

DISCUSSION:

I. LEGAL STANDARD

It is appropriate for a court to grant a motion for summary judgment “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

“If the nonmoving party has the burden of persuasion at trial, ‘the party

moving for summary judgment may meet its burden by showing that the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to

carry the nonmovant's burden of proof at trial.’” Jalil v. Avdel Corp., 873 F.2d

701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893,

896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating a motion for summary judgment the court will draw all

reasonable inferences from the evidence in the record in favor of the nonmoving

party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578

(3d Cir. 1995). The nonmoving party, however, cannot defeat a motion for

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summary judgment by merely offering general denials, vague allegations, or

conclusory statements; rather the party must point to specific evidence in the

record that creates a genuine issue as to a material fact. See Celotex, 477 U.S. at

32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.

1999).

II. FACTUAL BACKGROUND

This suit arises out of the death of Salvador Peter Serrano on the early

morning of October 26, 2003. Serrano died after an altercation with security for the

Rathskeller Bar. At the time of his death, Serrano was a student at Pennsylvania

State University. On October 26, 2003, Serrano along with plaintiff Morgan,

Timothy Padalino, and Alison Bresnahan were walking down Calder Way, an

alleyway near the Rathskeller. At around 1:30 a.m., Padalino stopped in a parking

lot near the rear of the Rathskeller to publicly urinate.

The plaintiffs claim that the incident was ignited when an unidentified

Rathskeller employee patrolling the parking lot and Calder Way area behind the

Rathskeller observed Padalino urinating and violently took him to the ground. The

deposition testimony of defendants Jason and Chris Rosengrant indicate that they

believe a subcontracted sound technician named Ben Hagan informed them that

there was a fight occurring behind the bar. (Rec. Doc. No. 106-2, at 33 & Rec

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1The exact facts surrounding how Serrano was approached are also in

dispute. Chris Rosengrant claims that he pulled Serrano to the ground in response

to Serrano attacking him from behind. This is disputed by the plaintiffs’

introduction of the testimony of plaintiff Morgan from a preliminary criminal hearing

in state court where she testified that the Rathskeller employees “came up behind

[Serrano] and took his arms and threw him on the ground.” (Rec. Doc. No. 112,

Ex. D, at 5, p.179.) Jason Rosengrant claims that plaintiff Morgan punched him on

the side of the head during this melee, but this claim is also denied by the plaintiffs.

5

Doc. No. 106-2, at 33.) As a result, several employees of the Rathskeller

confronted a group of people, among them, Serrano, Morgan, Padalino and

Bresnahan. The plaintiffs claim that these additional employees, led by Chris

Rosengrant, confronted the group and detained and restrained them. After verbal

and physical exchanges, Chris Rosengrant made physical contact with Serrano and

pulled him to the ground.1

Although the exact nature of how Serrano was restrained are in dispute, at

some point in time Jason Rosengrant turned his attention to Serrano. Jason

Rosengrant under deposition stated that he placed Serrano’s right hand behind his

back, while Serrano was on the ground and restrained him. This is inconsistent

with the plaintiffs’ version of events. In their version, Serrano is immediately

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2Handte also noted that substantial alcohol intoxication of Serrano at the time

of his death was a major contributory factor and he ruled the death accidental.

6

thrown to the ground by two security employees (Jason and Chris Rosengrant) and

held on the ground with Jason’s knee on his back while both men conitnued to

restrain him on the ground.

Officer Winkelbach of the SCPD arrived at the scene when Jason

Rosengrant was on top of Serrano. He surveyed the scene and according to his

deposition testimony observed that Rosengrant appeared to need help. In a matter

of seconds, and without speaking to Jason, Winkelbach began to handcuff

Serrano. He quickly realized that Serrano was not in any condition to resist and

was essentially lifeless.

Serrano was pronounced dead by officials of Centre County. The parties do

not dispute that Serrano died of asphyxia, but they do contest the cause of that

asphyxia. Plaintiff’s expert Dr. Michael Baden found that Serrano died of

positional asphyxia under the weight of the two Rosengrant brothers. (Rec. Doc.

No. 112, Ex. L, at 4.) Dr. Gordon Carl Handte, a board certified pathologist, 

performed an autopsy on Serrano and testified at a related criminal trial that

Serrano’s death was asphyxia by aspiration of vomitus.2 (Rec. Doc. No. 106-5, at

121.)

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3Plaintiff claims that in nearly every instance the SCPD would handcuff the

restrained patron. Handcuffing a patron is not equivalent with an arrest. Baker v.

Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995); see also United States v.

Burney, 35 F. App’x 354, 355 (3d Cir. 2002) (holding that placing handcuffs on

suspect was not an “arrest” and quoting Baker).

4Plaintiff admits that Gastiger did not initiate a discussion about the restraint

policy, but asserts that on the basis of an affidavit containing double hearsay, which

we will address below, unidentified employees of the Rathskeller were directed by

unidentified members of the SCPD to restrain individuals until the SCPD could

arrive at the scene. 

7

Duke Gastiger, the owner of the Rathskeller, admits that his employees

restrained individuals for defensive purposes, but not for “making that person

unable to leave the area so that the police could determine whether any laws have

been broken.” (Rec. Doc. No. 106-6, at 10.) Gastiger established the

Rathskeller’s policy of defensive restraint and communicated it to the staff orally. 

(Id. at 20, 89, 153.) Gastiger admits that individuals restrained by Rathskeller

employees have both been arrested by the SCPD and also have not been arrested

upon the arrival of the SCPD to the scene.3 Gastiger did not consult with anybody

at the SCPD in connection with his restraint policy.4 Gastiger testified at his

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5Sergeant Fishel’s testimony was that he directed Rathskeller employees to

hold onto fake identifications, but not to restrain individuals who attempted to use

8

deposition that Thomas King, Chief of the SCPD, did not offer any training to the

tavern owners’ association on the issue of self-defense or restraint.

Defendant Jason Rosengrant stated at his deposition that he was not

permitted to restrain someone while waiting for the police to arrive and that he was

only permitted to restrain someone to prevent the person from causing someone

bodily harm. Jason Rosengrant also stated that while the SCPD had arrested

individuals who had been restrained by the employees of the Rathskeller, the SCPD

never offered any training to Jason or Chris Rosengrant on how to restrain people

who were intoxicated.

None of the police officers deposed, including Chief King, could identify any

policy, custom, or practice whereby the employees of liquor licensees were to

restrain or detain an individual for purposes of permitting the SCPD to arrive on the

scene and effect an arrest. The SCPD did not have a written or official policy

sanctioned by Chief King to have liquor licensees hold or restrain people in order

for the police to make an arrest. (Rec. Doc. No. 106-7, King’s Dep., at 32.) And

testimony from the depositions consistently indicated that the SCPD never

instructed Rathskeller employees or liquor licensees to hold or restrain individuals.5

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those identifications to gain entry into the bar. (Rec. Doc. No. 106-9, Fishel’s

Dep., at 13.)

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(Rec. Doc. No. 106-7, King’s Dep., at 35-36 & 39; Rec. Doc. No. 106-8, Robb’s

Dep., at 8; Rec. Doc. No. 106-9, Fishel’s Dep., at 14.) The deposition testimony

of the police officers indicated that they informed bar employees to consult with the

owner of the establishment, an attorney, or the district attorney on when or how to

restrain someone. (Rec. Doc. No. 106-7, King’s Dep., at 13 (“Our practice has

always been, before this and after, is that they seek the advice of their corporate

attorney since we aren’t in a position to give legal advice. . . . I would refer people

to the corporate attorney or the district attorney who, in some cases, might be able

to answer questions for them.”); Rec. Doc. No. 106-8, Robb’s Dep., at 3-4 (“I

would tell them to refer it to their owners and their attorneys, that we can’t give that

advice.”); Rec. Doc. No. 106-9, Fishel’s Dep., at 14, 21 (“[C]onsult their

attorney.”)) The SCPD never directed bars or their security employees to restrain

or not to restrain intoxicated individuals. The SCPD and its officers were unaware

of whether the security employees had received training on how to restrain

individuals.

III. ADMISSIBILITY OF GASTIGER’S APRIL 20, 2006 AFFIDAVIT

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Plaintiffs have submitted an April 20, 2006 affidavit of defendant Duke

Gastiger. (Rec. Doc. No. 112-4, Ex. B.) In relevant part the affidavit stated:

I am the owner of the Rathskeller, I have been told

by my Employees that prior to the date of Mr. Serrano’s

death, members of the Rathskeller staff had been asked

on several occasions by the Borough Police Department

to hold people until the police got there. The police were

aware we, on occasion, restrained intoxicated patrons

until they arrived.

In addition, prior to Mr. Serrano’s death, there was

an occasion where Rathskeller staff were asked by the

Borough Police to assist in apprehending and restraining

individuals who were not on the Rathskeller’s property.

(Rec. Doc. No. 112-4, Ex. B, at 2.)

Defendant SCPD argues that the affidavit is not competent evidence. We

agree, but for slightly different reasons. Federal Rule of Civil Procedure 56(e)

provides that an affidavit offered in opposition to a motion for summary judgment

“shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent to

testify to the matters stated therein.” In this circuit, hearsay within affidavits offered

in opposition to motions for summary judgment may be considered, so long as the

hearsay declarant can be produced at trial to offer his or her statements in an

admissible form. See Rossi v. Standard Roofing, Inc., 156 F.3d 452, 470 n.13 (3d

Cir. 1998) (citing Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc.,

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998 F.2d 1224, 1234 n.9 (3d Cir. 1993). Thus, even though the affidavit contains

hearsay the unidentified declarants could be produced at trial and offer admissible

testimony.

We reject the contents of the affidavit on other grounds. The “sham

affidavit” doctrine prevents a party from creating a genuine issue of material fact to

defeat summary judgment by “filing an affidavit disputing his or her own sworn

testimony without demonstrating a plausible explanation for the conflict.” Baer v.

Chase, 392 F.3d 609, 624 (3d Cir. 2004) (citing Hackman v. Valley Fair, 932 F.2d

239, 241 (3d Cir. 1991)); see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

806-07 (1999) (gathering cases where courts rejected party offering selfcontradictory evidence in attempts to create genuine issue of material fact); see also

Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir. 1993) (holding

where there is no explanation of conflict between supplemental affidavit and

deposition testimony, self-serving contradictory supplemental affidavit cannot

create a genuine issue of material fact). A court applying the “sham affidavit”

doctrine may disregard the contradictory affidavit if the affiant’s contradictions are

unexplained and upon review of the record the court is convinced that there is no

independent evidence in the record to bolster the contradictory affidavit. See Baer,

392 F.3d at 625-26.

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In the instant case the affidavit is offered by Duke Gastiger, the owner of the

Rathskeller, a codefendant of the SCPD. Plaintiffs had the opportunity to depose

Gastiger and the defendant SCPD introduced the transcript from that deposition. 

That deposition clearly indicates that the restraint policy of the Rathskeller was one

created by the bar and not the police. (Rec. Doc. No. 106-6, at 10 (“Restraint”

does not include “making that person unable to leave the area so that the police

could determine whether any laws have been broken.”); Id. at 25 (“I’ve never had

any conversation with the police personally about restraint.”); Id. at 153 (discussing

not consulting with police in establishing Rathskeller’s restraint policy)).

The supplemental affidavit indicates that unidentified employees of the

Rathskeller were asked by the police on several occasions to hold people until they

got there and that on one unidentified occasion the police asked Rathskeller staff to

assist in apprehending and restraining individuals not on the Rathskeller property. 

The supplemental affidavit is not an outright contradiction of Gastiger’s earlier

testimony, i.e., it is possible that both the Rathskeller’s restraint policy could have

been in place and a request by the police to hold people until they arrived was

made, but there is nothing in the extensive record to bolster Gastiger’s statement. 

Instead, the record contains the transcripts of numerous depositions of police

officers, including Chief King, that all state that they never directed a liquor licensee

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6We also agree with the defendant that even if we were to consider the

affidavit as competent evidence it would not assist in the defeat of defendant’s

motion for summary judgment. The contents of the affidavit do not amount to

sufficient evidence from which a reasonable fact finder could find that someone at

the SCPD with policymaking authority made statements about detaining and

13

to restrain and/or detain a person so that the SCPD could respond to the scene to

make an arrest. Likewise, nothing in the depositions of Chris or Jason Rosengrant,

employees of the Rathskeller, indicates that the police ever directed them to restrain

customers. Even though the affidavit is not categorically contradictory we find the

principles of the sham affidavit doctrine appropriate in this case. Gastiger, as a

codefendant that did not file a motion for summary judgement, has every incentive

to assist in the defeat of defendant SCPD’s motion for summary judgment, by

offering this affidavit after the close of rather extensive discovery. The contents of

the affidavit amount to an “adverse party” resting upon “mere allegations” and

plaintiffs fail to set forth “specific facts” in the Gastiger affidavit that “show[] that

there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Because of the late

disclosure of the information in the affidavit, its self-serving nature, the utter lack of

evidence to bolster the contents of the affidavit in the record as a whole, and its

unspecific assertions, we do not consider the affidavit competent evidence.6 

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restraining people such that those statements would bind the SCPD. See McMillian

v. Monroe County, 520 U.S. 781, 784-85 (1997). Plaintiffs have had the

opportunity to depose numerous police officers with the SCPD and the Chief of

Police, and nothing in those depositions indicates the SCPD ever directed a liquor

licensee to detain or restrain a person so that the SCPD could effect an arrest.

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IV. PLAINTIFFS’ MONELL POLICY OR CUSTOM CLAIM (COUNT I)

In our April 1, 2005 order we set out the relevant law relating to plaintiffs’

claims. We will now again discuss the law governing plaintiffs’ claim under Monell. 

“Section 1983 imposes civil liability upon any person who, acting under color of

state law, deprives another person of any rights, privileges, or immunities secured

by the Constitution or the laws of the United States.” S.G. ex rel. A.G. v.

Sayreville Bd. of Educ., 333 F.3d 417, 429 (3d Cir. 2003); Doe v. Delie, 257 F.3d

309, 314 (3d Cir. 2001). The section does not create any new substantive rights,

but rather provides a remedy for the violation of a federal constitutional or statutory

right that appears elsewhere. Doe, 257 F.3d at 314 (citing Baker v. McCollan, 443

U.S. 137, 144 n.3 (1979)).

Plaintiffs’ section 1983 claims are to recover for violations of the Fourteenth

Amendment Due Process Clause. The Due Process Clause provides that “[n]o

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State shall . . . deprive any person of life, liberty, or property without due process

of law.” The Clause “was intended to prevent government from abusing its power,

or employing it as an instrument of oppression.” DeShaney v. Winnebago County

Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (internal citations and quotations

omitted).

A municipality cannot be liable under 42 U.S.C. § 1983 solely for the injuries

inflicted by its employees or agents, i.e. recovery under a theory of respondeat

superior. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978); Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000). In order to

hold a municipality liable for a section 1983 claim, plaintiffs must show that

municipal policymakers established or maintained a policy or custom which

through its execution deprived plaintiffs of a constitutional right. See Monell, 694

(1978); Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003). 

A court evaluating a claim against a municipality under section 1983 must determine

a “direct causal link” between the municipality’s policy or custom and the alleged

constitutional injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989);

Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004). 

Furthermore, the “[l]iability of municipal policymakers for policies or customs

chosen or recklessly maintained is not dependent upon the existence of a ‘special

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relationship’ between the municipal officials and the individuals harmed.” 

Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725 (3d Cir. 1989).

Unconstitutional municipal policies or customs may take three forms:

[1] the appropriate officer or entity promulgates a

generally applicable statement of policy and the

subsequent act complained of is simply an

implementation of that policy [2] no rule has been

announced as policy but federal law has been violated by

an act of the policymaker itself [and 3] the policymaker

has failed to act affirmatively at all, [though] the need to

take some action to control the agents of the government

‘is so obvious, and the inadequacy of existing practices

so likely to result in the violation of constitutional rights,

that the policymaker can reasonably be said to have been

deliberately indifferent to the need.’

Natale, 318 F.3d at 584 (quoting Bd. of County Comm’rs of Bryan County,

Oklahoma v. Brown, 520 U.S. 397, 417 (1997) (Souter, J., dissenting)).

The United States Court of Appeals for the Third Circuit has described

municipal liability under Monell as follows:

A government policy or custom can be established

in two ways. Policy is made when a “decisionmaker

possess[ing] final authority to establish a municipal policy

with respect to the action” issues an official proclamation,

policy, or edict. Pembaur v. City of Cincinnati, 475 U.S.

469, 481, 106 S.Ct. 1292, 199, 89 L.Ed.2d 452 (1986). 

A course of conduct is considered to be a “custom”

when, though not authorized by law, “such practices of

state officials [are] so permanent and well settled” as to

virtually constitute law. Monell, 436 U.S. at 690, 98 S.Ct.

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7When the United States Court of Appeals for the Third Circuit adopted the

17

at 2035 (quoting Adickes v. S.H. Kress & Co., 398 U.S.

144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142

(1970)). Accord Anela v. City of Wildwood, 790 F.2d

1063, 1067 (3d Cir.), cert. denied, 479 U.S. 949, 107

S.Ct. 434, 93 L.Ed.2d 384.

In either of these cases, it is incumbent upon a

plaintiff to show that a policymaker is responsible either

for the policy, or through acquiescence, for the custom. 

Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990); see Beck v.

City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).

As we have already stated, under section 1983 liability cannot attach to the

municipality for merely respondeat superior. Thus, a direct causal link must exist

between the acts of the governing body sought to be held liable and the alleged

constitutional deprivation. City of Canton, 489 U.S. at 385. “[A] municipality can

be liable under § 1983 only where its policies are the moving force [behind] the

constitutional violation.” San Filippo v. Bongiovanni, 30 F.3d 424, 445 (3d Cir.

1994) (quoting Canton, 489 U.S. at 388-89) (citations omitted). Because of this

requirement the Third Circuit requires that the local governing body act with

deliberate indifference to the alleged constitutional deprivation. Id. This standard

allows for liability to attach to policymakers that delegate their authority, but does

not hold policymakers liable for every decision made by a subordinate. Id. at 446.7

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deliberate indifference standard it noted a portion of the following language from

Justice O’Connor’s opinion in City of St. Louis v. Praprotnik regarding the

relationship between policymakers, policy, and the acts of subordinates. Justice

O’Connor, writing for the majority of the court and joined by three justices, stated:

Simply going along with the discretionary decisions made

by one’s subordinates, however, is not a delegation to

them of the authority to make policy. It is equally

consistent with the presumption that the subordinates are

faithfully attempting to comply with the policies that are

supposed to guide them. It would be a different matter if

a particular decision by a subordinate was cast in the

form of a policy statement and expressly approved by the

supervising policymaker. It would also be a different

matter if a series of decisions by a subordinate official

manifested a “custom or usage” of which the supervisor

must have been aware. . . . In both those cases, the

supervisor could realistically be deemed to adopt a policy

that happened to have been formulated or initiated by a

lower-ranking official. But the mere failure to investigate

the basis of a subordinate’s discretionary decisions does

not amount to a delegation of policy making authority. . .

.

 

485 U.S. 112, 130 (1988).

18

Section 1983's “under color” of law requirement and the Fourteenth

Amendment’s “state action” requirement are consistently treated as the same thing.

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); Jackson v. Temple Univ., 721

F.2d 931, 932-33 (3d Cir. 1983). The Third Circuit, quoting the Supreme Court,

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has noted that the criteria to determine whether there is state action “lack rigid

simplicity.” Benn v. Universal Health Sys., 371 F.3d 165, 171 (3d Cir. 2004)

(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S.

288, 296 (2001)). In the following passage, the Supreme Court identified several

different means by which a court might determine the presence of state action.

We have, for example, held that a challenged

activity may be state action when it results from the

State’s exercise of “coercive power,” when the State

provides “significant encouragement, either overt or

covert,” or when a private actor operates as a “willful

participant in joint activity with the State or its agents.” 

We have treated a nominally private entity as a state actor

when it is controlled by an “agency of the State,” when it

has been delegated a public function by the State, when it

is “entwined with governmental policies,” or when

government is “entwined in [its] management or control.”

Brentwood Acad., 531 U.S. at 295 (internal quotation marks and citations omitted).

In the instant case the second amended complaint alleges that the “SCPD

engaged in a custom, practice or policy of directing employees of various liquor

licensees in the borough of State College, including the Rathskeller, to detain and/or

restrain persons suspected by the liquor licensee to have violated the law until such

time as the SCPD could respond to the scene.” (Rec. Doc. No. 78, at 11, ¶ 44). 

The second amended complaint also alleges that the “SCPD unlawfully delegated

its law enforcement responsibilities to the liquor licensees and their employees.” 

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8The second amended complaint also avers that the SCPD had actual and

constructive knowledge that liquor licensee employees were detaining and

restraining persons suspected by the liquor licensees to have violated the law, (Rec.

Doc. No. 78, at 11, ¶ 45); that the SCPD had actual and constructive knowledge

that said employees “did not have appropriate training in the techniques of

detention, restraint and law enforcement,” (Rec. Doc. No. 78, at 11-12, ¶ 46); and

the SCPD had actual and constructive knowledge that those licensees and their

employees did not have appropriate training to make a determination of the lawful

or unlawful nature of the conduct of the person whom they detained and/or

restrained. (Rec. Doc. No. 78, at 12, ¶ 47). The second amended complaint

asserts that the “SCPD expressly and/or implicitly condoned, encouraged, and

authorized the practices of liquor licensees and their employees as described in the

preceding paragraphs.” (Rec. Doc. No. 78, at 12, ¶ 48).

20

(Rec. Doc. No. 78, at 12, ¶ 49.) The complaint asserts that this course of conduct

was either pursuant to an official policy of the SCPD or it was the result of custom

that was so well settled as to virtually constitute and/or have the force of law. (Rec.

Doc. No. 78, at 12, ¶ 50.)8

In 1989, the United States Supreme Court in DeShaney v. Winnebago Cty.

Soc. Servs. Dept., 489 U.S. 189 (1989), held that the Fourteenth Amendment’s

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Due Process clause did not impose an affirmative obligation on the state to protect

its citizens who are not in state custody. Id. at 195-96 & 199-200. The state is not

obligated to protect citizens from private violence. Id. at 195. This holding is

particularly relevant to plaintiffs allegations, as the SCPD cannot be liable simply

for independent acts by private actors causing harm, even if the SCPD were aware

of the likelihood of the possibility of those harms occurring.

The record indicates a total absence of an official policy, custom or edict by

a policymaker at the SCPD. Rather, the only deposition testimony directly on the

subject was by Chief King and indicated the absence of a formal written policy. 

(Rec. Doc. No. 106-7, King’s Dep., at 32.)

Plaintiffs, in their brief in opposition, focus their argument on advancing their

case via a custom theory based on the delegation of police responsibilities to

private actors, i.e., the liquor licensee employees, and policymaker acquiescence in

that delegation despite knowing that those employees were not adequately trained. 

In order for plaintiffs to demonstrate that defendant SCPD delegated the practice of

law enforcement to untrained bar security employees they must adduce sufficient

evidence for a reasonable jury to find that the practice was widespread and deeply

imbedded in the practices of the SCPD that although not law, the custom was so

permanent and well settled as to constitute law and that a policymaker for the

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9As we have already noted, a police handcuffing an individual is not

equivalent to an arrest and is sometimes necessary to secure the safety of the

officer and others. Baker, 50 F.3d at 1193.

22

SCPD acquiesced in that custom. Monell, 436 U.S. at 690. No reasonable jury

could find that the SCPD had a custom of delegating their responsibilities to bar

security from the evidence adduced by plaintiffs.

There is no competent evidence that indicates the SCPD directed liquor

licensee employees to detain or restrain individuals until the police arrived to effect

an arrest. Plaintiffs have introduced several police reports that indicate liquor

licensee employees did detain and restrain individuals, and that nearly all of those

times the arriving police officer would handcuff the restrained individual. However,

no reasonable jury could find from that evidence that there was a custom of

delegation when considered along with the rest of the record, which repeatedly

indicates that the police never directed the liquor licensee employees to detain and

restrain individuals until the police arrived to effect arrests.9 The plaintiffs’

assertions that liquor licensee employee’s detention and restraint of patrons was

consistent with the SCPD’s goals of keeping intoxicated people off of the streets in

light of the history of riots in State College is also not evidence that supports

plaintiffs’ case. Just because the goals of the liquor licensees and the SCPD

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10 Since the liquor licensees and their employees are private actors and there

is insufficient evidence from which a jury could find that they were delegated or

directed to execute duties of law enforcement it is insignificant to our analysis that

the licensee employees failed to comply with police use of force protocol. 

23

coincide does not mean that the SCPD has delegated its law enforcement authority

to the liquor licensee employees. Likewise, simply because the police respond to

calls initiated by private parties that does not mean that police have delegated their

law enforcement responsibilities to the liquor licensee employees. Also, any SCPD

failure to investigate alleged misconduct by bar employees does not provide

sufficient evidence from which a reasonable jury could find that the police had a

custom of using the employees to detain and restrain that was so well settled as to

constitute the law. See id. The record indicates that the SCPD investigated each

incident as they found appropriate, and furthermore, the security employees in this

case were in fact prosecuted. Finally, that there was name recognition and that the

liquor licensee employees could act consistent with police procedures without

direction does not provide sufficient evidence from which a reasonable jury could

find that there was a delegation by the police of their law enforcement

responsibilities to the liquor licensee employees.10 Therefore, judgment will be

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Furthermore, the police do not owe a duty of training the licensee employees in

proper restraint techniques so a failure to train theory is unsuccessful.

24

entered in favor of defendant Borough of State College and against the plaintiffs as

to Count I.

V. PLAINTIFFS’ STATE-CREATED DANGER CLAIM (COUNT II)

As we noted above, in DeShaney the Supreme Court held that the Due

Process Clause does not impose an affirmative duty to protect a citizen who is not

in state custody. DeShaney, 489 U.S. at 195-96 & 199-200. This does not mean

that no constitutional violation can occur when state authority is employed in a

manner that injures a citizen or renders him “more vulnerable to injury from another

source than he or she would have been in the absence of state intervention.” 

Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003) (citing Kneipp v.

Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996). This constitutional violation has a

remedy via the “state-created danger theory” under the Due Process Claus. Id.

The United States Court of Appeals for the Third Circuit recently stated the

essential elements of a meritorious state-created danger claim. Bright v.

Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006). A plaintiff must

establish the following elements:

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11Neither party briefed the issue under elements set forth in Bright, a decision

which was issued on April 4, 2006, days before the defendant’s motion for

summary judgment was filed. We note that Bright, by requiring a state actor to take

an affirmative act, appears to change the fourth element of the state created danger

25

(1) “the harm ultimately caused was foreseeable and fairly

direct;” (2) a state actor acted with a degree of culpability

that shocks the conscience; (3) a relationship between the

state and the plaintiff existed such that “the plaintiff was a

foreseeable victim of the defendant’s acts,” or a “member

of a discrete class of persons subjected to the potential

harm brought about by the state’s actions,” as opposed

to a member of the public in general; and (4) a state actor

affirmatively used his or her authority in a way that

created a danger to the citizen or that rendered the citizen

more vulnerable to danger than had the state not acted at

all.

Bright, 443 F.3d at 281 (footnotes and citations omitted) (emphasis added).

Plaintiffs assert that the evidence advanced by them demonstrates that the

“SCPD failed to address the dangers posed by the bouncers’ conduct by adopting

a ‘look the other way’ practice, by failing to take any action to stop these

dangerous activities, and by affirmatively adopting a policy not to train, educate, or

advise the bouncers to stop engaging in these activities.” (Rec. Doc. No. 112, at

49.) In light of Bright, plaintiffs’ state-created danger claim against SCPD must

fail.11 As we have already noted, plaintiffs have failed to come forward with any

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theory. See Bright, 443 F.3d at 288-93 (Nygaard, J., dissenting). That said, Bright

is a precedential decision controlling our decision today and foreclosing plaintiffs

from succeeding on a “look the other way” theory of recovery.

26

admissible evidence from which a reasonable jury could find that the SCPD had a

policy or custom of directing bar security to detain and restrain unruly patrons to

affect their arrest. Furthermore, a jury could not reasonably infer that the police

delegated their responsibilities to bar security. Without evidence of an affirmative

act on the part of the SCPD plaintiffs’ state created danger theory is not actionable. 

Therefore, judgment will be entered in favor of defendant Borough of State College

and against the plaintiffs as to Count II.

VI. PLAINTIFFS’ SURVIVAL ACTION CLAIM (COUNT XI)

In our April 1, 2005 memorandum ruling on the defendants’ motions to

dismiss, we ruled that the survival action in Count XI of the complaint was not a

separate theory of liability. In relevant part we stated:

Count XI asserts a claim under The Survival Act,

42 Pa. C.S.A. § 8302. This count is a vehicle for other

causes of action to survive the death of the plaintiff by

continuing to be held by the personal representative, and

is not a separate theory of liability. Donlan v. Ridge, 58

F. Supp. 2d 604, 608 (E.D. Pa. 1999) (citing Harvey v.

Hassinger, 461 A.2d 814, 816 (Pa. Super. Ct. 1983)).

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27

(Order, Rec. Doc. No. 65, at 18.)

As we have determined that judgment as to counts One and Two should be entered

in favor of the defendant State College, leaving no counts against that defendant for

the survival action to be a vehicle, judgment will also be entered in favor of

defendant State College as to count Eleven. 

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CONCLUSION:

For the aforementioned reasons, the court will issue an order entering

judgment in favor of defendant Borough of State College and against plaintiffs

Grace Jiminez and Brooke E. Morgan as to counts I, II and XI of the complaint. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GRACE JIMINEZ, as :

Administratrix of the Estate of :

SALVADOR PETER SERRANO, :

and BROOKE E. MORGAN : CIVIL NO. 4:04-CV-1897

:

Plaintiffs, : (Judge McClure)

:

v. :

:

ALL AMERICAN :

RATHSKELLER, INC., d/b/a :

THE RATHSKELLER BAR, :

BOROUGH OF STATE COLLEGE, :

d/b/a STATE COLLEGE POLICE :

DEPT., PHYLLIS H. GENTZEL, :

d/b/a THE GENTZEL :

CORPORATION, BLUEBIRD :

ENTERTAINMENT ENTERPRISE, :

d/b/a THE DARK HORSE, JASON :

ROSENGRANT, RYAN :

ROSENGRANT, CHRIS :

ROSENGRANT, CURTIS :

ROSENGRANT, COLIN :

HAUGHTON, and ASSOCIATED :

PROPERTY MANAGEMENT, INC. :

d/b/a ASSOCIATED REALTY :

PROPERTY MANAGEMENT, :

:

Defendants, :

O R D E R

June 2, 2006

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2

For the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The motion for summary judgment filed on behalf of defendant Borough

of State College is granted. (Rec. Doc. No. 106.)

2. The clerk is directed to defer entry of final judgment in favor of

defendant Borough of State College until there has been a disposition of the entire

case.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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