Grubbs v. Newark Delaware Police Department et al

Filing 235

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 7/27/17. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

)

JASON W. GRUBBS,

)

Plaintiff,

)

v.

)
) Civ. No.15-195-SLR
)

CPL. JAMES MARCONI, et aI.,

)
)

Defendants.

)

Jason W. Grubbs, Plaintiff, Avondale, Pennsylvania, pro se.
Richard D. Abrams, Esquire and Daniel P. Bennett, Esquire of Mintzer, Sarowitz, Zeris,
Ledva & Meyers, LLP, Wilmington, Delaware. Attorneys for Defendants James .
Marconi, Greg D'Elia, Andrew Rubin and James Skinner.
James Darlington Taylor, Jr., Esquire, Allison Jean McCowan, Esquire and Dawn Kurtz
Crompton, Esquire, of Saul Ewing LLP, Wilmington, Delaware. Attorneys for Michael
Jon Maier, Jay Protz and Sean Hogan.

MEMORANDUM OPINION

Dated: February J..1 ,2017
Wilmington, Delaware

R~~trict Judge
I. INTRODUCTION
On March 2, 2015, pro se plaintiff Jason W. Grubbs ("plaintiff') filed this action
against thirty-five different individuals and entities for claims revolving around his arrest
and prosecution. (D. I. 1) The complaint alleges civil rights violations pursuant to 42
U.S.C. §§ 1983, 1985 and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution and asserts violations of Delaware state law, including
claims of false arrest, false imprisonment, assault, battery, defamation, invasion of
privacy, negligent publication, gross negligence, malice, negligent infliction of emotional
distress, malicious prosecution, abuse of process, conspiracy, and tortious interference.
Many of the counts and defendants were dismissed upon defendants' motions. (D.1.
184, 185)
Pending before the court are fully briefed motions for protective orders filed by
plaintiff, cross motions for summary judgment filed by plaintiff and remaining
defendants, and a motion for discovery filed by plaintiff. (D.1. 195-200, 205-207, 212­
216,218,219,221-227,230-232) The court has jurisdiction pursuant to 28 U.S.C.

§ 1331.
II. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background
The allegations in the unverified complaint are set forth in detail in the court's
March 29, 2016 memorandum opinion. (See D.1. 184) Counts three, four, five, and six

(raised pursuant to 42 U.S.C. § 1983)1 and count seventeen (raised pursuant to
Delaware law) against Newark Police Department ("NPD") defendants Cpl. James
Marconi ("Marconi"), MS/Cpl. Greg D'Elia (UD'ElialJ), Sgt. Andrew Rubin ("Rubin"), and
lJ
detective James Skinner ("SkinnerlJ) (collectively "NPD defendants ) and University of
Delaware Police Department ("UDPD") defendants Sgt. Michael Jon Maier ("Maier"),
detective Jay Protz ("Protz") and officer Sean Hogan ("Hogan") (collectively "UDPD
defendantslJ) survived defendants' dismissal motions. (0.1. 184, 185) After the court
ruled on defendants' motions to dismiss, it entered a scheduling and discovery order on
March 31, 2016, that set a discovery deadline of October 3,2016, and a dispositive
motion deadline of November 4,2016. (0.1. 186)
Discovery commenced and, on April 13, 2016, plaintiff filed a motion for a
protective order from unwarranted discovery from defendants and a motion for
summary judgment. (0.1. 195, 197) Plaintiff filed a second motion for a protective order
on May 4,2016. (0.1. 212) Plaintiff did not respond to any of defendants' discovery
requests or provide defendants any discovery. Defendants responded to
interrogatories served upon them by plaintiff. (0.1. 208-211, 217, 233) Defendants filed
motions for summary judgment on November 4,2016 and, approximately one month
later, plaintiff filed a motion for submission of new evidence. (0.1. 221, 222, 230)

1When 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. West v. Atkins, 487 U.S. 42,48 (1988).

2

B. Facts Presented by the Parties 2
On April 20, 2013, at around 10:45 p.m., NPD and UDPD officers responded to a
complaint of a naked man exposing himself to two female victims in the area of Beverly
Road in Newark, Delaware. (0.1. 198, ex. C; 0.1. 223, ex. 1) A perimeter was set up,
the NPD initiated a K-9 track in the area, and officers operated as mobile units in
vehicles and on foot. (0.1. 198, ex. C) Marconi and Maier saw an individual matching
the description provided by the victims (later identified as plaintiff) hiding in a group of
bushes and trees. (0.1. 198, ex. C; 0.1. 223, exs. 1,4) Plaintiff, who emerged from the
bushes and trees, fled on foot; he was pursued by Marconi and Maier, who were also
on foot. (ld.) When Maier saw plaintiff, he shouted "hey," and plaintiff began running.
(0.1. 223, ex. 4) Maier pursued plaintiff and announced "police stop," but plaintiff
continued to run. (ld.) Plaintiff was apprehended by Marconi and Maier while he was
attempting to climb a fence. (0.1. 198, ex. C; 0.1. 223, exs. 1,4) Maier was holding
onto plaintiff's leg while the rest of plaintiffs body was on the other side of the fence.
(0.1. 198, ex. C) Marconi grabbed plaintiff by his shoulders and physically pulled
plaintiff back over to the side of the fence causing all three to fall to the ground. (ld.) In
pulling plaintiff back over the fence, one of the fence pickets broke. (0.1. 208-211)
Maier handcuffed plaintiff. (0.1. 223, ex. 4) Marconi and Maier placed plaintiff

2Plaintiff did not submit any affidavits to support his motion for summary
judgment or in opposition to defendants' motions for summary judgment. In addition,
his complaint is neither sworn nor verified. See Eg/i v. Stevens, 1993 WL 153141 at *8
n.6 (ED. Pa. May 11, 1993) (for pro se plaintiff, where "neither [the] complaint nor his
response to defendants' motion for summary judgment contain[ed] a verification," court
could "treat neither as if it were an affidavit"), aff'd, 17 F.3d 1429 (3d Cir. Jan. 3, 1994)
(table). Plaintiff relies upon police reports, transcripts, photographs, and records from
the Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware.

3

into custody with no further resistence, and plaintiff was placed in a NPD patrol unit.
(Id.) Maier denies striking plaintiff on the ankle or stomping on his ankle. (0.1. 223, ex.

1) Maier states that he did not deploy or have a police K-9 under his control during the
arrest and did not permit or otherwise cause a police K-9 to bite plaintiff's thigh. (0.1.
223, ex. 1) Maier asked plaintiff if he was hurt, and plaintiff did not complain of injuries.

(0.1. 198, ex. C, 0.1. 223, ex. 1) Police reports prepared by the NPD and UDPD make
no mention that plaintiff complained of injuries. (0.1. 191, ex. C; 0.1. 223, exs. 1,4)
Marconi called out that the suspect was in custody and D'Elia responded to the
area to assist. (0.1. 198, ex. C) During this time, Rubin contacted the victims and
transported them to the area to conduct a show-up. (0.1. 198, ex. C) Following the
show-up, plaintiff was placed in a NPD police car and transported to the NPD precinct
for processing, questioning and detention. (0.1. 198, ex. C; 0.1. 223. ex. 2) Plaintiff was
questioned by NPD detective Skinner and UDPD detective protZ.3 (ld.) According to
Skinner's report. plaintiff stated that he went for a run in the area and, when he saw
uniformed police, he fled because he had marijuana inside his vehicle and he was
afraid. (0.1. 198. ex. C) Plaintiff did not complain of any injuries or request any medical
care when he was interviewed by Protz. (0.1. 223. ex. 2)

3Protz was not present when plaintiff was arrested. (0.1. 223, ex. 2) He denies
striking plaintiff on the ankle or stomping on his ankle and states that he did not deploy
or have a police K-9 under his control during plaintiff's detention and did not permit or
otherwise cause a police K-9 to bite plaintiff's thigh. (/d.)

4

Plaintiff was charged with sixteen criminal counts including lewdness, resisting
arrest and indecent exposure for a total of six incidents dating to 2011. (0.1. 141, exs.
A, 8) Plaintiff agreed to plead guilty to one count of resisting arrest and no contest to
one count of lewdness in exchange for probation before judgment. (0.1. 141, ex. C)
The remaining counts were nolle prossed. (ld.)

III. LEGAL STANDARD
'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}. 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.1 0 (1986). A party asserting that a fact
cannot be--or, alternatively, is--genuinely disputed must be supported either by citing to
"particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for the purposes of the motions only), admissions, interrogatory answers, or other
materials," or by "showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed. R. Civ. P. 56(c}(1)(A}, (8). If the moving party has
carried its burden, the nonmovant must then "come forward with specific facts showing
that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation
marks omitted). The court will "draw all reasonable inferences in favor of the

6

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).
At the summary judgment stage, the judge's function is not to weigh the
evidence and determine the truth of the matter, but to determine whether there is a
genuine issue for trial. Anderson v. Uberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
judge must ask not whether the evidence unmistakably favors one side or the other, but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence
presented. Id. at 252. The court must not engage in the making of "[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts" as these "are jury functions, not those of a judge, [when] [] ruling on a
motion for summary judgment." EED.C. v. GEl Group, Inc., 616 F.3d 265,278 (3d
Cir. 2010) (citation omitted).
To defeat a motion for summary judgment, the non-moving party must "do more
than simply show that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586-87; see also Podobnik v. U.S. Postal Service, 409 F.3d
584, 594 (3d Cir. 2005) (stating party opposing summary judgment "must present more
than just bare assertions, conclusory allegations or suspicions to show the existence of
a genuine issue") (internal quotation marks omitted). Although the "mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment," a factual dispute is genuine where "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Uberty Lobby, 477 U.S. at 247-48. "If the evidence is merely colorable, or

7

is not significantly probative, summary judgment may be granted." Id. at 249-50
(internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(stating entry of summary judgment is mandated "against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial"). The same
standards and burdens apply on cross-motions for summary judgment. See
Appelmans v. CifyofPhiladelphia, 826 F.2d 214, 216 (3d Cir. 1987).
Plaintiff moves for summary judgment on the grounds that "there is no
conceivable way for defendants to mount a meritorious defense in light of the evidence
being brought forth by plaintiff." (D.1. 197, 198) NPD defendants move for summary
judgment on the grounds that plaintiff cannot meet his burden of proof with respect to
the claims against them. (D.1. 221) UDPD defendants move for summary judgment on
the grounds that: (1) plaintiff's claims fail as a matter of law; and (2) the undisputed
facts support the propriety of the UDPD defendants' actions. (D.1. 222, 223)

IV. DISCUSSION
A. Count Three, Excessive Force
U[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."

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Id. at 397; Kopec v. Tate, 361 F.3d 772, 777 (3d Gir. 2004); Mosley v. Wilson, 102 F.3d
85, 95 (3d Gir. 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 Gir. 2008) (unpublished) (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 Gir. 2008) (unpublished) (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 Gir. 2007) (unpublished) (no excessive
force by police officers in handcuffing and subduing arrestee who was intoxicated,

9

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 Coli. of Allegheny, 85 F. App'x 821 (3d Cir. 2004) (unpublished) (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 th Cir. 2000) (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 uncomfortable manner).
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 facts before the court are that plaintiff matched the description of an
individual who had been reported to the police as exposing himself to two individuals. It
is undisputed that when plaintiff saw the uniformed officers, he ran. Indeed, when he
was questioned, he admitted fleeing when he saw uniformed officers because he had
marijuana in his vehicle. It is also undisputed that plaintiff continued to flee, despite the
presence of at least one police officer and a command to stop. It was not until plaintiff
was unable to clear a fence that plaintiff stopped. The force used by defendants was to
hold onto plaintiff so that he would not continue to flee and then to pull plaintiff (as well

10

as both officers) over to one side of the fence and onto the ground. Of note is that
plaintiff pled guilty to resisting arrest.
In addition, the evidence of record does not support plaintiff's claim that
defendants injured plaintiff's ankle. Plaintiff presented no evidence to support this
claim, while UDPD defendants (including arresting officer Maier) submitted affidavits
denying that they struck plaintiff's ankle. Notably, when plaintiff was seen by medical at
the HRYCI, he did not complain or make mention of an ankle injury. Finally, plaintiff
complained to medical at the HRYCI that he was bitten by a dog. While there is
evidence that a K-9 track was started, there is no evidence of record that any of the
named defendants were part of the K-9 track or that they had a police K-9 under their
control at the time that plaintiff was allegedly bitten. s
The facts and circumstances of plaintiff's arrest, as described by defendants, are
not disputed with competent proof by plaintiff. Even when viewing the facts in the light
most favorable to plaintiff, it is undisputed that plaintiff ran from officers and continued
to flee even after he was commanded to stop. 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. A

SThe medical records refer to a wound puncture and a small ecchymosis at the
groin, but do not describe the area as a dog bite wound. (0.1. 200, ex. B) The court
viewed photographs of plaintiff's injuries submitted in support of his motion for summary
judgment. (0.1. 199, ex. A) It is more likely that plaintiff sustained the puncture wound
when he attempted to hurdle the picket fence.
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reasonable jury could conclude that the force used was reasonable given the conduct
of plaintiff.
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 and will deny plaintiff's motion for summary
judgment as to the excessive force claim.

B. Count Four· Failure to Protect
"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 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, 136 (3d Cir. 2013) (unpublished) ( "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.

12

Accordingly, the failure to protect claims fail as a matter of law. Therefore, the
court will grant defendants' motion for summary judgment and will deny plaintiffs
motion for summary judgment as to the failure to protect claims.

C. Count Five - Medical Needs
Deliberate indifference to the medical needs of an arrestee violates his
Fourteenth Amendment right to due process. See City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003); Groman

V.

Township of Manalapan, 47 F.3d 628, 636-37 (3d Cir. 1995).

To demonstrate deliberate indifference to medical needs, a plaintiff must show "0) a
serious medical need, ... (ii) acts or omissions by [law enforcement] officials that
indicate deliberate indifference to that need," Natale, 318 F.3d at 582, and (iii) a causal
connection between the indifference and the plaintiff's injury. Miller V. City of Phi/a.,
174 F.3d 368, 374 n.5 (3d Cir. 1999). "Deliberate indifference exists where there is
objective evidence that a plaintiff had serious need for medical care and the need was
ignored or delayed for non-medical reasons. See Smith v. Gransden, 553 F. App'x 173,
177 (3d Cir. 2014) (unpublished) (citations omitted). Hence, plaintiff must show that
defendants knew of the risk to him and disregarded it and that such acts or omissions
caused plaintiff injury. See id.
There is no evidence of record that any named defendant was aware that
plaintiff had a serious need for medical care. Plaintiff was asked repeatedly if he was
injured, plaintiff did not complain of injuries, and he did not request medical care. While
plaintiff was in Hogan's custody, Hogan stated that plaintiff had no visible injuries,

13

plaintiff did not appear to be in distress, and plaintiff did not request medical attention.
Upon screening at the HRYCI, plaintiff indicated only that he had bruising and, once
there, he received medical treatment at 7:45 p.m., less than 24 hours following his April
21, 2013 11 :00 p.m. arrest.
The evidence of record does not support a finding of deliberate indifference to
plaintiff's medical needs and, therefore, the court will grant defendants' motion for
summary judgment and will deny plaintiff's motion for summary judgment as to this
issue.

D. Count Six - Special Relationship Doctrine
Generally, a state actor has no affirmative duty to protect an individual from the
acts of a private third party. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d
Cir. 1997) (citations omitted). However, an affirmative duty may arise out of certain
special relationships between the State and particular individuals. Morrow v. Ba/aski,
719 F.3d 160, 167 (3d Cir. 2013). For example, when the State holds an individual in
custody against his will, the Constitution imposes upon the State a corresponding duty
to assume some responsibility for the individual's safety and general well-being. Id.
The duty to protect does not emanate from the State's knowledge of the individual's
predicament or an expression of intent to assist, but from the restraints the State
imposes on the individual's ability to act on his own behalf. Kingsmill V. Szewcxak, 117
F. Supp. 3d 657, 663-664 (E.D. Pa. 2015). A breach of the duty created by the special
relationship occurs when "the state, 'under sufficiently culpable circumstances, [fails] to

14

protect the health and safety of the citizen." O.R. v. Middle Bucks Area Vocational
Tech. Sch. 972 F.2d 1364, 1369 (3d Cir. 1992).
In determining the applicability of the special relationship doctrine, the court first
determines whether plaintiff has alleged a protected interest and a sufficient
relationship with defendants to state a cause of action. Nicini v. Morra, 212 F.3d 798,
809 (3d Cir. 2000). Next, the court must determine whether the alleged violation
amounted to a violation of plaintiff's constitutional rights. Id. In doing so, the court must
identify the "level of conduct egregious enough to establish a constitutional violation,"
and determine whether there is sufficient evidence to establish that defendants' conduct
rose to that level. Id. For the conduct to amount to a constitutional violation, it must be
so egregious as to shock the conscience. Id. at 810. In order to shock the conscience
with respect to non-emergency decisions, defendants must have acted with deliberate
indifference. Id.
Under the special relationship doctrine, the court uses a substantive due-process
claim analysis to establish State actors' liability for the acts of non-governmental or
private third parties. See e.g., Liebson v. New Mexico Corr. Oep't, 73 F.3d 274, 276
(10 th Cir. 1996) (discussing theory whereby State actors may be liable for the acts of
private third parties). In the instant case, plaintiff's claim that defendants violated the
special relationship doctrine fails as a matter of law, given there is no evidence that
private thirty party individuals (i.e., non-governmental actors) harmed plaintiff.
Alternatively, even if the doctrine were applicable, on the unopposed facts before
the court, defendants did not place plaintiff in any danger when they attempted to arrest

15

him since, as discussed above, the force used was necessary and reasonable to
effectuate plaintiff's arrest. Moreover, as discussed above, defendants were not
deliberately indifferent to plaintiff's medical needs. Defendants did not create a
dangerous environment nor did they breach any duty owed to plaintiff.
Based upon the foregoing, the court will grant defendants' motion for summary
judgment as to special relationship doctrine claim. The court will deny plaintiff's motion
for summary judgment

E. Count Seventeen - Assault and Battery
In count seventeen, plaintiff raises a State assault and battery claim when he
alleges conduct by Maier, Marconi, Rubin and D'Elia caused injury to his ankle and
thigh. Having determined that summary judgment is appropriate as to plaintiff's federal
claims, the court declines to exercise supplemental jurisdiction over plaintiff's State law
claims for assault and battery.7 See 28 U.S.C. § 1367(c); see also Carlsbad Tech., Inc.
v. HIF Bio, Inc., 556 U.S. 635, 639-640 (2009) (once district court grants summary

judgment on federal cause of action, it is appropriate for court to exercise its discretion
to determine whether to retain supplemental jurisdiction over remaining State law
claim).8

7The court further notes that the evidence of record does not support plaintiff's
State claims. Plaintiff did not identify the unknown officer or officers who allegedly were
responsible for the ankle injury or alleged dog bite.
8The court notes that the parties were not diverse at the time the complaint was
filed given plaintiff's and three news outlet defendants' common Pennsylvania domicile.
Diversity of citizenship is established by the "facts that existed at the time the complaint
was filed." Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009).
16

v.

CONCLUSION
For the above reasons, the court will: (1) deny as moot plaintiff's motions for

protective order from unwarranted discovery (D.1. 195,212); (2) deny plaintiffs motion
for summary judgment (D.1. 197); (3) grant the motion for summary judgment filed by
defendants James Marconi,'Greg D'Elia, Andrew Rubin and James Skinner (D.1. 221);
(4) grant the motion for summary judgment filed by defendants Sean Hogan, Michael
Jon Maier and Jay Protz (D.I. 222); (5) deny as moot plaintiff's motion for submission of
new evidence (D.1. 230); and (6) decline to exercise supplemental jurisdiction over
plaintiff's State law claims.
A separate order shall issue.

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