Damiani v. Delaware State Police Troop 2 et al
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 10/4/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Civ. No. 12-1637-RGA
DETECTIVE DUFFY, et al.,
Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Detective Sean Duffy, Gary Potts,
Daniel Grassi, Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk, Ronald Kline,
Corey Godek, Detective Jack Tsai, Detective Thomas Rhoades, Detective John Glenn,
Rob Kracyla, James Kelly, Scott Galbreath, and Alfred Parton.
David C. Weiss, Acting United States Attorney, and Jennifer Lynne Hall, Assistant
United States Attorney, Wilmington, Delaware. Counsel for Defendant Casey Bouldin.
Rosamaria Tassone-DiNardo, Esquire, City of Wilmington Law Department,
Wilmington, Delaware. Counsel for Defendant Detective Stephen Morrissey.
. District Judge:
Plaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983 and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389
(1971). 1 He also raises supplemental State law claims. He appears prose and has
been granted leave to proceed in forma pauperis. (D.I. 7). Plaintiff raises excessive
force and failure to protect claims against Defendants. Before the Court are
Defendants' Motions for Summary Judgment. (D.I. 261, 264, 269). 2 Briefing on the
motions is complete.
LEGAL AND FACTUAL BACKGROUND
Plaintiff commenced this action on December 4, 2012, alleging violations of his
constitutional rights under 42 U.S.C. § 1983. (D.I. 2). The Court dismissed the original
complaint, Plaintiff amended numerous times, and the matter proceeds on the Fourth
Amended Complaint ("Amended Complaint"). (D.I. 214). Named defendants include
New Castle County Police Department Detective Casey Bouldin, who was acting as a
task force officer with the United States Bureau of Alcohol, Tobacco, Firearms and
Explosives; Wilmington Police Department Detective Morrissey, who was also assigned
to the ATF task force; and State of Delaware employees Detective Duffy, Detective
When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Where a litigant
sues federal actors for damages on constitutional grounds, the claim is governed by
Bivens, 403 U.S. at 389.
The parties have submitted numerous exhibits, many of them duplicative. For
example, all Defendants have submitted the transcript of Plaintiff's deposition. When
referring to facts for which there are duplicative exhibits, for the sake of simplicity, the
court will cite to only one exhibit rather than to each exhibit provided by the parties.
Gary Potts, Detective Daniel Grassi, Corporal Lano, Corporal Eric Daniels, Corporal
John Dudzinski, Sergeant Mark Hawk, Detective Ronald Kline, Detective Corey Godek,
Detective Rhoades, Detective Glenn, Rob Krisilla (i.e., Kracyla), 3 James Kelly, Scott
Galbreath, and Alfred Parton (collectively "State Defendants"). Plaintiff alleges
Defendants used excessive force during his apprehension and arrest on December 6,
2010, and failed to intervene to stop the alleged excessive use of force, all in violation
of his Fourth Amendment rights. Following his arrest, Plaintiff was charged, tried by a
jury in September 2011 in the Superior Court of the State of Delaware in and for New
Castle County, and convicted of eighteen counts of robbery in the first degree, thirtythree counts of possession of a firearm during the commission of a felony, eleven
counts of wearing a disguise, six counts of conspiracy in the second degree, six counts
of aggravated menacing, eight counts of attempted robbery in the first degree, and one
count of reckless endangering in the first degree. Damiani-Melendez v. State, 55 A.3d
357, 358-59 (Del. 2012). He received a total sentence of 297 years, followed by a
period of Level II probation. (D.I. 271 at A26).
The arrest and conviction occurred after the Delaware State Police's Fall 201 O
investigation of a string of armed robberies of retail and liquor stores in New Castle
County. (D.I. 263 at Ex. 2 at DSP499-500). The robberies all appeared to be related,
and all involved the use of weapons. (Id. at DSP499-500, 508). Due to the frequency
of the robberies, members of the State Police and other law enforcement agencies met
on December 6, 2010 for a briefing on a large-scale effort to catch the perpetrators. (Id.
The correct spelling is Kracyla.
at DSP500-01). The law enforcement agencies decided that each night, teams of two
officers would be assigned to as many area liquor stores as possible, and the officers
would wait until the perpetrators arrived. (Id.). The officers were told that the
perpetrators were armed and that the getaway car was a dark-colored Honda Civic. (Id.
As officers left the briefing, a call came in at 7:33 p.m. stating that American
Liquors on Old Baltimore Pike had been robbed. (Id. at DSP501 ). A second call came
in at 8:13 p.m. stating that Tobacco Plus in the Four Seasons Shopping Center had
been robbed. (Id.). At 8:52 p.m., a third call came in stating that Airport News and
Tobacco in Wilmington Manor had been robbed. (Id.).
ATF task force officers Bouldin and Morrissey were assigned to Silview Liquors
on West Newport Pike. (D.I. 263 at Ex. 2 at DSP502, 527; 0.1. 271 at A 1-A4, A9-A 10).
After the call about the third robbery, Bouldin saw an individual wearing a black hooded
sweatshirt walk into Silview Liquors. (0.1. 263 at Ex. 2 at DSP527-28). A few minutes
later, the person in the black hooded sweatshirt left the store, started to run, and
stepped into a dark-colored Honda Civic. (Id.). Morrissey also saw the individual, who
was later identified as Plaintiff, enter and leave the liquor store, move quickly to his
vehicle, and drive away. (0.1. 271at A3-4, A10-13).
Bouldin, who was driving his undercover vehicle, a Dodge Ram pickup, pulled in
behind Plaintiff and began following him. (0.1. 263 at Ex. 2 at DSP527-28). Bouldin
called out the Civic's tag number and was advised by radio dispatch that Silview Liquors
had just been robbed. (Id.). Morrissey, who was driving his undercover vehicle, a white
Ford F-150 truck, saw the Civic drive away, followed by Bouldin. (0.1. 271 at A1). As
Morrissey pulled out, he heard the radio dispatcher advise that Silview Liquors had just
been robbed at gunpoint. (D.I. 263 at Ex. 2 at DSP527-28; Ex. 3 at DSP1031-32; D.I.
271 at A2.)
Morrissey lost sight of Plaintiff's car during the pursuit. (D.I. 271 at A2). By this
time, several police officers had joined the pursuit. (Id.). Plaintiff led a caravan of
unmarked police vehicles on a high-speed chase. (D.I. 263 at Ex. 1 at 22; Ex. 2 at
DSP528-29; Ex. 3). Plaintiff stated that he was speeding, traveling in excess of 70
miles per hour, and trying to lose the cars. (D.I. 263 at Ex. 1 at 71, 185). Plaintiff lost
control of the vehicle after he attempted to execute a U-turn by engaging the
emergency brake. (Id. at 72-73). Plaintiff was stopped near the entrance of Delaware
Park at approximately 9:00 p.m. (D.I. 263 at Ex. 1 at 27; Ex. 2 at DSP528-29).
Once Plaintiff's car stopped, undercover police vehicles blocked the front, rear,
and driver's side of the vehicle. (D.I. 266 at A19). Daniels' vehicle was next to the
driver's side door of Plaintiff's car. (Id. at A 1). Galbreath's unmarked SUV also blocked
Plaintiff's car. (Id. at A5).
According to Potts, all officers were wearing identifying clothing, and the police
cars had police lights. (D.I. 266 at A-19). According to Plaintiff, however, there were no
flashing lights, and the police were wearing regular clothes. (D.I. 263 at Ex. 1 at 28; Ex.
12 at 15). He could not recall if the officers were wearing police vests. (D.I. 263 at Ex.
1 at 31). According to Plaintiff, within two seconds, officers stepped out of their cars
and yelled for him to put his hands up. (Id. at 22-23, 28-29). Also according to Plaintiff,
in the next fifteen or twenty seconds, officers ordered him to put his hands out of the
window, and an officer cuffed him. (D.I. 263 at Ex. 1 at 23-24, 29-30).
Kelly, a probation officer, pointed his gun at Plaintiff's car. (D.I. 266 at AS). Kelly
says that he never left his car and was told by other officers to duck to avoid any
potential cross fire. (Id. at A 12). He did not see any of the arrest and left the scene
after he was told that the situation was "all clear." (Id.). Parton drew down on Plaintiff's
vehicle with a rifle and remained there until other officers were able to place Plaintiff in
handcuffs. (D.1.184-2 at 20; 0.1. 266 at A26). According to Parton, Plaintiff did not give
up his hands and resisted arrest. (D.I. 266 at A26). Parton had no contact with
Plaintiff's driver's side window was partially down. (D.I. 266 at A19). According
to Potts, Galbreath, and Parton, the officers present gave Plaintiff numerous commands
to turn off his vehicle and show his hands, but Plaintiff did not acknowledge or respond
to the commands. (D.I. 266 at A6, A19, A26). According to Plaintiff, he put his hands
up and, after a little bit, when he saw the guns, put his hands out the window. (D.I. 263
at Ex. 1 at 23-24; Ex. 12 at 17).
Plaintiff's car doors were locked, and the car's windows were tinted dark so
Daniels and Galbreath could not see how many individuals were inside. (D. I. 263 at Ex.
1 at 32-33; Ex. 2 at DSP529; D.I. 266 at A1, A6). Daniels was aware that the robbery
suspects were armed. (D.I. 266 at A1). Galbreath attempted to open the passenger
door, but it was locked, so he returned to his car to retrieve a Hooligan tool, which is a
heavy-duty, forcible-entry tool. (Id. at A6). Daniels went to the passenger side of
Plaintiff's car and used his gun to partially break the window. (D.I. 263 at Ex. 1 at 24,
32-34; D.I. 266 at A1).
When Plaintiff put his hands out the driver's side window, Bouldin handcuffed
Plaintiff in front, through the open window with the door closed. (D.I. 184-3 at 5; D.I.
263 at Ex. 1 at 23-24; Ex. 2 at DSP529-30; D.I. 266atA19). Bouldin held on to the
cuffs while another officer moved a police car that was blocking Plaintiff's driver's side
door. (D.I. 263 at Ex. 1 at 24-25; Ex. 2 at DSP529-30). Dudzinski arrived around this
time. (D.I. 266 at A395). According to Potts and Daniels, Plaintiff refused commands
to get out of the car, continued to move around in the driver's seat, lowered his hands
so that there were out of sight below the dashboard, and had to be physically removed
from his vehicle. (Id. at A2, A 19). Daniels came around to the driver's side and pointed
his gun at Plaintiff. (Id. at A2).
Bouldin continued to hold onto the handcuffs as two or three officers
approached. (D.I. 184-3 at 5). Either Daniels or another officer opened Plaintiff's car
door to remove Plaintiff from the vehicle. (D.I. 266 at A2). Dudzinski recalls assisting in
this process. (Id. at A395). According to Plaintiff, an officer, unidentified by Plaintiff,
said to Plaintiff, "When I open this door, you are to fall face first on the ground," and
Plaintiff replied, "No problem." (D.I. 263 at Ex. 12 at DSP966). As one of the officers
opened the door, Bouldin continued to hold onto the handcuffs, and two of the officers
tried to grab Plaintiff from the vehicle. (D.I. 184-3 at 5). Bouldin released the handcuffs
and moved to the passenger side of the vehicle to help clear the rest of the vehicle.
(D.I. 184-3 at 5; D.I. 263 at Ex. 14 at 9). At this point, Bouldin heard, "my foot is stuck"
or "his foot is stuck." (D.I. 263 at Ex. 14 at 9-10). Plaintiff testified that the officers
initially could not remove him from the car because his right sneaker was caught on the
seat adjustment lever, and this made it difficult for the officers to pull him out. (D.I. 263
at Ex. 1 at 25, 49, 202-03). Plaintiff stated that he cut his heel on the lever as he was
pulled out because the lever was sharp and missing its plastic cover. (Id. at 49).
The officers pulled Plaintiff out of his car and onto the asphalt in seconds. (D.I.
263 at Ex. 1 at 25, 36, 40, 202-03; Ex. 13 at DSP1153). Daniels grabbed onto Plaintiff,
and Plaintiff fell "hard" face first onto the asphalt. (D.I. 184-2 at 25; D.I. 266 at A2).
According to Daniels, it was "real hard" because the officers did not know the proximity
of the weapon or anything at that point in time. (D.I. 184-2 at 25). Once Plaintiff was
on the ground, Daniels was on the ground near Plaintiff's left arm, in a "catcher's mitt
position" to make sure that there was not extra weight on Plaintiff. (D.I. 184-2 at 25;
D.I. 266 at A2). Potts states, at this point, Plaintiff had not yet been patted down and
thus posed a threat to the officers' safety. (D. I. 184-2 at 12). Dudzinski states that at
this point, he had no idea if Plaintiff was armed and that he would not know until
Plaintiff was frisked, which occurred some time after his removal from the car. (D.I. 266
at A396). Plaintiff testified that, after he was taken to the ground, "three, maybe four"
officers kicked and hit him with a "metal thing" in the head, face, chest, stomach, and
legs, and called him names. (D.I. 263 at Ex. 1 at 25-26, 51-52). He could not
remember how long the kicking continued, but it was "not even" a minute. (Id. at
Once Plaintiff had been removed from the vehicle and the passenger side had
been cleared, Bouldin returned to his vehicle. (D.I. 263 at Ex. 2 at DSP530; Ex. 14 at
10). Bouldin states that he did not see anyone use excessive force on Plaintiff. (D.I.
263 at Ex. 14 at 4-6, 9-10).
After Plaintiff had been taken into custody, Galbreath returned with the Hooligan
tool and used it break out the passenger window. (D.I. 266 at A6). According to
Galbreath, he never went near Plaintiff once he was removed from the vehicle. (Id.).
Once Plaintiff was on the ground, Galbreath returned to his vehicle. (D.I. 184-2 at 21).
The officers told Plaintiff to get up. (D.I. 263 at Ex. 12 at DSP973-74).
According to Plaintiff, a heavyset officer with a mustache standing four feet away from
Plaintiff wound up and spat at Plaintiff, and it landed in his hair. 4 (D.I. 263 at Ex. 1 at
52-53, 234-38). Plaintiff testified that he was brought to the side of the road by officers
whom he could not identify. (Id. at 26, 60).
Officers moved Plaintiff to a grassy area where the ground was frozen; according
to Daniels and Potts, Plaintiff was non-compliant and moving and struggling with the
officers during this time. (D.I. 266 at A2, A20). There were officers on top of Plaintiff
trying to hold him down while he resisted. (Id. at A20). Potts held Plaintiff down in the
leg area. (D.I. 184-2 at 12). Once Plaintiff became compliant, officers patted him down
and told him that he would be secured by handcuffs in the back. 5 (D.I. 184-2 at 13).
According to Potts, when he removed a handcuff, Plaintiff began to move wildly about
While such behavior would be unprofessional and disgusting, it would not
violate Plaintiffs constitutional rights. See, e.g., Gill v. Tuttle, 93 F. App'x 301, 303 (2d
Cir. 2004) (prison guard spitting on prisoner was de minimis use of force); Williams v.
Gobles, 211 F.3d 1271 (6th Cir. 2000) (claim by prisoner that corrections officer spit at
him, threatened him, and called him a vile name several times failed to state a claim
upon which relief could be granted); DeMal/ory v. Cullin, 855 F.2d 442, 444 (7th Cir.
1988) (correctional officer's spitting upon prisoner does not rise to the level of
Changing Plaintiff's handcuffs from the front to the back was done to comply
with standard operating procedures. (D.I. 266 at A20).
and attempt to break from the officers. (D.I. 184-2 at 13; D.I. 266 at A20). Further,
according to Potts, it took three to five officers (including Potts) to secure the handcuffs
and cuff Plaintiff a second time. (D.I. 266 at A20). Potts states that during this time,
when Plaintiff did not respond to verbal commands, Potts used his body weight and
leverage to try to get Plaintiff's unsecured arm behind his back and into the handcuffs.
(D.I. 266 at A20). Once Plaintiff was handcuffed behind his back, he stopped resisting
and was compliant, says Potts. (D.I. 184-2 at 13).
Plaintiff, on the other hand, told Internal Affairs that he was not fighting at any
time or making any motions that could have been perceived as fighting. (D.I. 263 at Ex.
12 at 36). Plaintiff testified that he was placed on the ground, and unknown officers he
could not see took turns kicking him and hitting him with a metal object. (Id. at 34-35).
Plaintiff told Internal Affairs that he was face down with his hands behind his back,
telling the officers he could not breathe. (D.I. 263 at Ex. 12 at 34). Plaintiff said he was
then hit with a metal object, which was the last thing that hit him. (Id. at 35). Plaintiff
testified that one officer hit him on his left elbow with a "metal thing," and this caused
him to suffer "some nerve damage or some type of damage." (D.I. 263 at Ex. 1 at 26).
Plaintiff did not know how long he was kicked. (Id. at 63). He testified that he lost
consciousness, but medical records indicate that he denied losing consciousness. (Id.
at 50; Ex. 5 at DSP908). Plaintiff sat down on a curb before he was moved to a State
Police cruiser and transferred to Troop 2. (D.I. 184-2 at 13; D.I. 263 at Ex. 1at27).
The officers on the scene deny witnessing or participating in a beating. (D.I. 263
at Ex. 13 at DSP1153, 1157, 1163, 1171; Ex. 14 at4-6, 9-10). Daniels, Potts,
Galbreath, and Dudzinski state that they did not strike, punch, or spit on Plaintiff and did
not see any officer do so. (D.I. 266 at A2, A6, A20, A396). Daniels, Potts, and
Dudzinski state that they did not see any other officer use a baton or other object to
strike Plaintiff. (Id. at A2, A20, A396). Galbreath states that he did not use the
Hooligan tool to strike Plaintiff in any way. (Id. at A6). Parton states that he did not
witness anyone punching, kicking, or spitting on Plaintiff. (Id. at A26).
When Kracyla arrived, Plaintiff was already in custody and was on the ground.
(D.I. 184-3 at 9; D.I. 266 at A15). He did not see any force applied to Plaintiff. (D.I.
184-3 at 9). When Morrissey arrived, Plaintiff was already handcuffed and in custody.
(D.I. 271 at A2). He says that he did not strike, hit, punch, kick, or spit on Plaintiff and
did not see any other officer strike, hit, punch, kick, or spit on Plaintiff. (Id.). When
Rhoades arrived at the scene, he was told that Plaintiff was already in custody. (Id. at
A22). Rhoades was not present for Plaintiff's apprehension or arrest. (Id.).
Lano arrived after the incident to gather evidence. (D.I. 266 at A17). When
Hawk arrived at the scene, Plaintiff had been taken into custody, and he directed
Glenn, who was not present for Plaintiff's arrest, to transport Plaintiff to State Police
Troop 2. (Id. at A?, A10). According to Hawk, he had no physical contact with Plaintiff
and did not personally witness Plaintiff's arrest. (D.I. 184-3 at 8; D.I. 266 at A10).
Duffy, Kline, and Godek were conducting surveillance elsewhere, and were not present
at Plaintiff's arrest on December 6, 2010. (D.I. 266 at A3, A 13, A24). Tsai was not
involved in the incident or its investigation. (Id. at A23).
Grassi, the chief detective on the case, did not arrive at the scene until
approximately fifteen minutes after Plaintiff had been taken into custody. (D. I. 266 at
A9). When Grassi arrived, Plaintiff was handcuffed and either lying on the ground or
sitting with his head down. (D.I. 184-2 at 28-29). Grassi obtained a search warrant for
Plaintiff's vehicle and recovered cartons of cigarettes, cash proceeds from the
robberies, a backpack used in the robberies, and a loaded .380 Cobra handgun with a
bullet in the chamber, which Plaintiff later admitted he had used in the Silview Liquors
robbery. (D.I. 263 at Ex. 7 at DSP796-98; 0.1. 266 at A9, A20).
Plaintiff testified that the officers who handcuffed and removed him from the car
were involved, but he has not identified any individuals. 6 (D.I. 263 at Ex. 1 at 30,
36-38). He testified that he sued defendants because their names appeared on
paperwork or reports as being part of the investigation. (Id. at 152, 159). Plaintiff gave
a recorded interview to Internal Affairs, which was investigating his excessive force
complaint. (D.I. 263 at Ex. 12). At that time, he stated that he could not identify the
officers who participated in the alleged excessive force: "Honestly, I can't describe any
of those guys who were there because I was just, to be honest with you, I don't
remember who was there, who was not there. I'm going, you know, off the report."
(D.I. 263 at Ex. 12 at DSP965).
Plaintiff cannot provide any description of the individuals other than skin color
(white). (D.I. 263 at Ex. 1 at 30, 38-40). He cannot provide hair color, weight, facial
description, or clothing or uniform details. (Id.). Plaintiff testified that he could not
identify Bouldin as being present, and he did not know where Bouldin was. (D.I. 263 at
Plaintiff has described the incident as, "as soon as I hit the floor, they started
punching me and kicking me. Well, I don't know about punching, but I felt, you know,
like I might have been punched," he was not hit with the "metal thing" until after being
taken to the side of the road; he was kicked and called names after being taken the
ground; he could actually see officers both kicking and hitting him; and he was also hit
with a "metal thing" and spat upon. (D.I. 263 at Ex. 1at25-26, 41-42, 51-52).
Ex. 1 at 59-63). During his deposition, Plaintiff testified that he could not identify any of
the officers he claims inflicted the second beating. (Id. at 61-63).
After his arrest, Plaintiff was taken to State Police barracks and photographed.
(D.I. 263 at Ex. 1 at 212-213; Ex. 4). The photographs show face abrasions. (D.I. 263
at Ex. 4). Plaintiff was then taken to the Newark Emergency Center. Medical records
indicate that Plaintiff sustained three face abrasions on his face and one on his scalp.
(D.I. 263 at Ex. 1 at 222-223; Ex. 5 at DSP908-10). Plaintiff complained of right foot,
right heel, and left knee pain, and made no complaints about either elbow. (D.I. 263 at
Ex. 5 at DSP907-10). An x-ray of the right foot revealed no fractures, and there was no
knee swelling. (Id.). Plaintiff was discharged with instructions to take over-the-counter
medication. (D.I. 263 at Ex. 5 at DSP906, 910). Plaintiff testified that he sustained face
and scalp abrasions, a cut on the back of his foot from his seat lever, and an inflamed
elbow. (D.I. 263 at Ex. 1 at 49-50).
Plaintiff spoke to his fiance by telephone two days after his arrest and did not
complain that the officers used excessive force. (D.I. 263 at Ex. 6 at DSP1095 -98). 7
At the time, Plaintiff did not know that prison calls were recorded. (D.I. 263 at Ex. 1 at
136). Four days after his arrest, Plaintiff was interviewed by detectives investigating the
robberies. (D.I. 263 at Ex. 7). Plaintiff admitted that on the night of his arrest he had
robbed Airport News and Tobacco and Silview Liquors at gunpoint and that the
handgun recovered from his Civic was the gun used during the robberies. (D.I. 263 at
Plaintiff told his fiance that he had robbed four stores the night of his arrest, led
officers on a chase, explained how he pulled his emergency brake in an attempt at a
U-turn getaway, and was stopped near Delaware Park with the gun still in his car. (Id.).
Ex. 7 at DSP796-98). Plaintiff made no mention of excessive force during the interview.
In response to Defendants' motions for summary judgment, Plaintiff submitted an
declaration on June 5, 2017 that contradicts his prior statements and deposition
testimony that he could not identify or provide adequate descriptions of any individual
who allegedly kicked and/or beat him. In the affidavit, Plaintiff now identifies various
defendants as committing specific acts. (See 0.1. 291 at 1J1f 14, 18).
The Court does not consider the declaration as it contradicts Plaintiff's prior
deposition testimony. The declaration now identifies specific defendants as committing
specific acts. The Court concludes that the declaration falls within the Third Circuit's
definition of a "sham affidavit." That is, the declaration contains contradictory
statements which "indicates only that the affiant cannot maintain a consistent story or is
willing to offer a statement solely for purposes of defeating summary judgment."
Jimenez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). Courts cannot
accord sham affidavits evidentiary weight. Id. Hence, I will disregard Plaintiffs
declaration in my Rule 56 determination.
"The court shall grant summary judgment if the movant shows that 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). A "material fact" is one that "could affect the
outcome" of the proceeding. See Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011 ). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 n.10 (1986). The court will "draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
If the moving party is able to demonstrate an absence of disputed material facts,
the nonmoving party then "must set forth 'specific facts showing that there is a genuine
issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Fed.
R. Civ. P. 56(c)). The mere existence of some evidence in support of the nonmoving
party, however, will not be sufficient for denial of a motion for summary judgment. Id. at
252. Rather, the nonmoving party must present enough evidence to enable a jury to
reasonably find for it on that issue. Id. If the nonmoving party fails to make a sufficient
showing on an essential element of its case with respect to which it has the burden of
proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Bouldin moves for summary judgment on the grounds that: (1) his actions were
objectively reasonable; (2) Plaintiff's inconsistent and contradictory allegations
regarding the alleged beating do not create a genuine issue of fact; (3) Plaintiff cannot
identify Bouldin as having personal involvement in any misconduct; and (4) Bouldin is
protected by qualified immunity. (D.I. 262). State Defendants move for summary
judgment on the grounds that: (1) there is no factual basis to support Plaintiff's claims
of excessive force; (2) State Defendants are protected by qualified immunity; (3) the
Court should decline to exercise supplemental jurisdiction over the State assault and
battery claims; and (4) the claims against Galbreath, Kelly, and Parton are time-barred.
(D.I. 265). Morrissey moves for summary judgment on the grounds that Plaintiff cannot
establish that he violated Plaintiff's constitutional rights and, thus, he is protected by
qualified immunity. (D.I. 27).
State Defendants obtained the expert report of Charles J. Key, Sr., a retired
Maryland Police Commanding Officer, on the issue of use of force. (D.I. 266 at A346).
I will not consider the expert report for two reasons.
First, Federal Rule of Civil Procedure 56(c)(1 )(A) provides that a party asserting
that a fact cannot be or is genuinely disputed must support that assertion by "citing to
particular parts of materials in the record, including ... affidavits or declarations." Here,
no declaration or sworn affidavit was provided with the expert report. Our appellate
court has found that unsworn testimony "is not competent to be considered on a motion
for summary judgment." Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir. 1989) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)); see also Jackson v.
Egyptian Navigation Co., 222 F. Supp. 2d 700, 709 (E.D. Pa. 2002) (finding that an
unsworn expert report cannot be considered as evidence on a motion for summary
judgment). In addition, district courts in our circuit have held that an unsworn
declaration cannot be relied upon to defeat a motion for summary judgment. See, e.g.,
Burrell v. Minnesota Mining Mfg. Co., 2011 WL 5458324 (E.D. Pa. June 9, 2011)
(refusing to consider expert reports when no timely sworn affidavits were provided with
reports and reports were not sworn to under penalty of perjury).
Second, the expert report provides conclusions of law. Although Rule 704 allows
experts to provide an opinion about the "ultimate issue" in a case, it prohibits experts
from opining about the ultimate legal conclusion or about the law or legal standards.
Patrick v. Moorman, 536 F. App'x 255, 258 (3d Cir. 2013) (citing Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006)).
The expert report provides two opposing conclusions on the objective
reasonableness of Defendants' use of force in arresting Plaintiff, which consider the
accounts of Defendants and Plaintiff, respectively. (See D.I. 266 at A346-94). In a§
1983 suit, '"reasonableness' is practically interchangeable with 'excessiveness."'
Patrick, 536 F. App'x at 258. Moreover, "[r]easonableness under the Fourth
Amendment ... is a legal conclusion." United States v. Williams, 343 F.3d 423, 435
(5th Cir. 2003). Thus, I will not consider the expert report, which contains opinions that
speak to the objective reasonableness of Defendants' actions. See Patrick, 536 F.
App'x at 258 (holding that district court did not abuse its discretion in excluding those
parts of expert's testimony which opined on the reasonableness of deputy's actions).
Initially, I note that there is no evidence of record that Kelly, Rhoades, Lano,
Glenn, Grassi, Duffy, Kline, Godek, and Tsai had any personal involvement during the
events complained of by Plaintiff. As is well established, a defendant in a civil rights
action must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior. Rode v. Dellarciprete, 845
F.2d 1195, 1207-08 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3
(1981 )). Personal involvement can be shown through allegations of personal direction
or of actual knowledge and acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made with appropriate particularity.
Even when construing the evidence in the light most favorable to Plaintiff, no
reasonable jury could find that the foregoing Defendants were personally in the events
as alleged by Plaintiff. The foregoing Defendants were either not present, arrived after
the events in question, had no contact with Plaintiff, or did not witness the events in
question. Notably, there is nothing in the record indicating that the foregoing
Defendants had any physical interaction with Plaintiff. Absent evidence indicating that
they did, no jury could grant a verdict in Plaintiff's favor.
Accordingly, because they had no personal involvement, I will grant the motion
for summary judgment filed on behalf of Kelly, Rhoades, Lano, Glenn, Grassi, Duffy,
Kline, Godek, and Tsai.
The remaining Defendants (Potts, Daniels, Dudzinski, Hawk, Galbreath, Parton,
Bouldin, and Morrissey) move for summary judgment on the grounds that the actions
they took were reasonable under the circumstances, there were no violations of
Plaintiffs constitutional rights, and they are protected by qualified immunity. "[C]laims
that law enforcement officers have used excessive force ... in the course of an arrest .
. . should be analyzed under the Fourth Amendment and its 'reasonableness' standard .
. . ." Graham v. Connor, 490 U.S. 386, 395 (1989). "[T]he 'reasonableness' inquiry in
an excessive force case is an objective one: the question is whether the officers'
actions are 'objectively reasonable' in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation." Id. at 397; Kopec v. Tate,
361 F.3d 772, 777 (3d Cir. 2004); Mosley v. Wilson, 102 F.3d 85, 95 (3d Cir. 1996). A
court must judge the reasonableness of particular force "from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396. The reasonableness of the officer's use of force is measured
by "careful attention to the facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight." Id.
Plaintiff alleges the use of excessive physical force. Because the determination
of whether the use of force is reasonable is a fact specific inquiry, courts have reached
different results depending upon the facts and circumstances of each case. See
Pridgen v. Law, 299 F. App'x 211 (3d Cir. 2008) (finding evidence insufficient to show
that arresting officers used unreasonable or excessive force in arresting suspect;
although suspect sustained bloody nose during the arrest, evidence showed that
suspect resisted arrest, tried to flee, and during the struggle, officers and suspect fell on
an overturned couch, causing suspect to hit his head on the floor); Bender v. Township
of Monroe, 289 F. App'x 526 (3d Cir. 2008) (finding genuine issues of material fact
precluded summary judgment on whether police officers retaliated and used excessive
force against an arrestee by beating him while handcuffed, hitting him in the face with a
flashlight, and breaking his cheekbone, because arrestee had kicked an officer); Davis
v. Bishop, 245 F. App'x 132 (3d Cir. 2007) (finding no excessive force by police officers
in handcuffing and subduing arrestee who was intoxicated, disobeyed officer's orders to
attempt to perform a field sobriety test and get off the hood of the police car, and
eventually kicked out the rear window of the police cruiser; although officer admitted to
having flung arrestee off the car, officers were confronted with an uncertain situation
with an individual who was uncooperative); Feldman v. Community Coll. of Allegheny,
85 F. App'x 821 (3d Cir. 2004) (finding no excessive force by police officers when
arresting college student, even if, as student alleged, officers wrestled student to the
ground and kicked him in the head, when the student resisted arrest and actively
struggled with officers when they attempted to remove him); Nolin v. Isbell, 207 F .3d
1253, 1255, 1257 (11 1h Cir. 2000) (finding no excessive force where officer grabbed
plaintiff from behind, threw him against a van three or four feet away, kneed him in the
back, pushed his head into the side of the van, and searched his groin in an
The reasonableness of defendants' conduct in their use of force is measured by
"careful attention to the facts and circumstances" of this case. See Graham, 490 U.S.
at 396. The undisputed evidence of record is that as a result of a series of armed
robberies in the New Castle County area, law enforcement agencies embarked on a
large-scale effort to catch the individuals involved in the robberies. Some of the
robberies were committed by armed individuals, and the getaway car was a darkcolored Honda Civic. On the night in question, three establishments were robbed prior
to the Silview Liquors robbery. While surveillance at Silview Liquors was taking place, it
was robbed, and officers were notified by the radio dispatcher that it was an armed
robbery. A person wearing a black hooded sweatshirt entered, left the store in a very
short time, and moved quickly to his Civic, a vehicle that matched the description
provided by law enforcement.
Plaintiff was driving the car, and a high speed chase ensued. Plaintiff took
evasive, albeit unsuccessful, measures to avoid those chasing him. Although Plaintiff
stated that he did not know if the individuals giving him chase were police officers, he
testified that once he stopped, he was ordered to put his hands up, an order typically
given by the police. Plaintiff testified that he put up his hands "after a little bit." In other
words, he did not put up his hands right away. Also, Plaintiff's vehicle had tinted glass
that did not allow police officers to see if anyone, other than Plaintiff, was in the vehicle,
nor did it allow officers to see if there was a weapon readily available to Plaintiff.
When officers attempted to remove Plaintiff from his car, he was warned that he
would fall on the asphalt. In addition, Plaintiff's foot was stuck on the seat adjustment
level, and this caused difficulty when police officers pulled Plaintiff from the car.
Plaintiff fell hard. Officers knew the robbery at Silview Liquors was committed by an
armed individual, and because they had no idea if Plaintiff was armed, he posed a
threat to the officers' safety. Plaintiff indicated that the first incident of which he
complains lasted "not even a minute."
Plaintiff was then moved to a grassy area so that Potts could change the
handcuffs from the front to the back. According to Plaintiff, he was compliant, but Potts
states that Plaintiff was not compliant. When one of Plaintiff's hands was unsecured,
Potts used his body weight and leverage to get the unsecured hand behind Plaintiff's
back and into handcuffs. Potts' statement indicates that he believed Plaintiff continued
to pose a threat. According to Plaintiff, officers kicked him, and he was hit with
something metal, but when questioned, he did not recall how long this incident lasted.
Plaintiff is unable to identify any of the officers allegedly involved. Other than evidence
corroborating Potts' self-confessed presence at the scene, the evidence submitted by
Defendants does not speak to any individual's involvement during the second incident.
See Sharrarv. Fe/sing, 128 F.3d 810, 821 (3d Cir. 1997), abrogated on other grounds
by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007) (holding that a claim for
excessive force requires a party to provide facts that reasonably identify the alleged
wrongdoer); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972) (holding that the district
court did not err when it directed a verdict in favor of defendant officers because of
plaintiffs failure to make an appropriate identification, even though a witness testified
that one of the two defendants beat the plaintiff with a wooden club).
With regard to the first incident (removing Plaintiff from his vehicle), even when
viewing the facts in the light most favorable to Plaintiff, it is undisputed that Plaintiff was
involved in a serious violent crime and was possibly one of the individuals who had
committed a series of armed robberies in New Castle County. His vehicle met the
description of that used in the series of robberies. Radio dispatch had indicated that
the most recent robbery was committed by an armed individual. Plaintiff led officers on
a high speed chase. He did not immediately show his hands when commanded to do
so. The possibility of a weapon posed a threat to the Defendants' safety.
Keeping in mind that "police officers are often forced to make split-second
judgments, in circumstances that are tense, uncertain, and rapidly evolving, about the
amount of force that is necessary in a particular situation," the Court concludes that the
force used by Defendants was objectively reasonable to gain control of the situation,
see Graham, 490 U.S. at 397, and that no reasonable jury could conclude otherwise
given Plaintiffs conduct.
Similarly, with regard to the second incident (on the grass), although the issue of
Plaintiff's compliance or non-compliance is in dispute, in light of the fact that the
robberies were committed by armed individuals, he remained a threat to the officers'
safety. According to Plaintiff, it was at this time that he was hit in the elbow area with a
metal object (presumably the Hooligan tool).
Plaintiff does not identify the individual
who hit him. The evidence of record identifies only one individual as having a metal
object: Galbreath, who used the Hooligan tool to break the Plaintiff's passenger car
window. Galbreath's undisputed statement is that he never went near Plaintiff after
Plaintiff was removed from his vehicle, and once Plaintiff was on the ground, Galbreath
returned to his car. Nothing in the record suggests that Potts (the only individual
identified as being present during the second incident) was in possession of a metal
tool or that Potts took any action other than to use his weight and leverage to secure
Plaintiff in handcuffs behind his back in accordance with standard operating
Further, the medical records indicate that Plaintiff had face abrasions and
contusions, a left knee contusion, and a right heel abrasion, all of which were treated
with over the counter medications. However, the medical records do not mention any
injury to Plaintiff's elbows or that Plaintiff complained of pain or injuries to his elbows,
which is the injury Plaintiff seems to indicate was the result of being hit with something
metal during the second incident. The Court notes that the injuries as set forth in the
medical records can only be described as de minimis, and do not indicate that Plaintiff
was subjected to excessive force. See Sharrar, 128 F.3d at 822 ("We do not agree that
the absence of physical injury necessarily signifies that the force has not been
excessive, although the fact that the physical force applied was of such an extent as to
lead to injury is indeed a relevant factor to be considered as part of the totality").
Accordingly, given Plaintiff's continuing threat to officers' safety; Plaintiff's
inability to identify a metal object-wielding officer present at the alleged beating, coupled
with the only metal object-wielding officer's undisputed absence from the scene;
Plaintiff's inability to identify the officers who allegedly kicked him, to name Potts as one
of the kickers, or to pinpoint a number of attackers; and the medical records' failure to
indicate an injury to Plaintiff's elbow, I am constrained to find no evidentiary basis on
which to hold any of the Defendants liable and no genuine issue of material fact as to
the reasonableness of the force used by Defendants to gain control of the situation.
For the above reasons, the Court finds that any force that may have been
applied does not rise to the level of a constitutional violation. Therefore, the Court will
grant Defendants' motion for summary judgment on the excessive force claim.
Failure to Protect
Plaintiff also raises failure to protect claims. "Courts have held that a police
officer has a duty to take reasonable steps to protect a victim from another officer's use
of excessive force, even if the excessive force is employed by a superior." Smith v.
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). "However, an officer is only liable if there
is a realistic and reasonable opportunity to intervene." Id. at 651. For liability to attach
under § 1983 or Bivens for the failure to intervene in another's use of excessive force, a
plaintiff must show that: (1) defendant failed or refused to intervene when a
constitutional violation took place in his or her presence or with his or her knowledge;
and (2) there was a realistic and reasonable opportunity to intervene. Id. at 651.
If there is no excessive force, then there is no corresponding duty to intervene.
See Nifas v. Coleman, 528 F. App'x 132, 135-36 (3d Cir. 2013) ( "Because we find that
no constitutional violation occurred with respect to excessive force, Nifas also cannot
succeed on his failure-to-intervene claims."). As discussed above, Defendants' actions
during Plaintiff's arrest were reasonable and did not violate Plaintiff's constitutional
rights with regard to Plaintiff's excessive force claims.
Accordingly, the failure to protect claims fail as a matter of law. Therefore, the
Court will grant Defendants' motions for summary judgment as to the failure to protect
Having determined that summary judgment is appropriate as to the federal
claims, the Court declines to exercise jurisdiction over the supplemental State law
claims. See 28 U.S.C. § 1367; De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d
For the above reasons, the Court will: (1) grant Defendant Bouldin's Motion for
Summary Judgment (D.I. 261 ); (2) grant the Motion for Summary Judgment filed by
Defendants Lano, Daniels, Duffy, Dudzinski, Galbreath, Glenn, Godek, Grassi, Hawk,
Kelly, Kline, Kracyla, Parton, Potts, Rhoades, and Tsai (D. I. 261 ); (3) grant Defendant
Morrissey's Motion for Summary Judgment (D.I. 269); and (4) decline to exercise
supplemental jurisdiction over the State claims.
An appropriate order will be entered.
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