Mathis v. Fossett et al
MEMORANDUM. Signed by Judge Sue L. Robinson on 3/27/2017. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSE VASQUEZ, and
) Civ. No. 15-345-SLR
thisd'~ay of March, 2017,
having reviewed defendants' motion
for summary judgment and the papers submitted in connection therewith, the court
issues its decision based on the following reasoning:
1. Procedural background. Plaintiff Brenda Mathis ("plaintiff') filed a complaint
against the above named defendants related to her arrest in the City of Wilmington on
January 27, 2014. Plaintiff alleges: (1) violation of 42 U.S.C. § 1983 use of excessive
force, as to defendants Wilmington Police Officers Michael Fossett ("Fossett") and
Samuel Smith ("Smith") (count 1); (2) violation of 42 U.S.C. § 1983 based on Fourth
Amendment unlawful detention and arrest, as to defendants Fossett and Smith (count
2); (3) violation of 42 U.S.C. § 1983 based on First Amendment retaliation, as to
defendants Fossett, Smith, and Wilmington Police Officer Jose Vasquez ("Vasquez")
(count 3); (4) violation of 42 U.S.C. § 1983 based on malicious prosecution against all
of the named defendants (Fossett, Smith, Vasquez, and Wilmington Police Officer D.
"Jones") (count 4); (5) intentional infliction of emotional distress, as to defendants
Fossett (count 5) and Smith (count 6); (6) violation of 42 U.S.C. § 1983 based on
Fourth Amendment unlawful seizure and retention of plaintiff's BMW, as to defendant
Fossett (count 7); and (7) trespass to chattels, as to defendants Fossett and Jones.
(D.I. 1, ex. A) Through the course of discovery and the instant summary judgment
motion practice, plaintiff has withdrawn counts 6, 7 and 8. 1 The court has jurisdiction
pursuant to 28 U.S.C. § 1331.
2. Factual Background. On the morning of January 27, 2014, Fossett and
Vasquez stopped a BMW sedan ("the BMW") after they saw the vehicle pass through a
stop sign. (D.I. 37 at A-3) Plaintiff's son, Steven Wright ("Wright"), was driving the
BMW (which was owned by plaintiff), and Jeremy Watkins ("Watkins") was in the
passenger seat. (Id.) Wright pulled the BMW over in the parking lot of plaintiff's
business, LJ's Playpen Academy. (Id. at A-135) Vasquez approached the driver's side
window of the BMW, and Fossett approached the passenger side. (Id. at A-3, A-9-10,
A-135-36) Vasquez asked Wright for his license, registration and insurance card;
Wright refused to comply with the request until he was told why he was pulled over;
Vasquez responded that the stop would be explained once Wright complied with the
request. (Id. at A 100, A 107, A 109) Because neither Wright nor Watkins rolled down the
Consequently, counts 6, 7, and 8 are dismissed with prejudice. Because there
are no longer any allegations pending against defendant Jones, he is dismissed as a
party with prejudice. Finally, plaintiff did not identify any bad conduct related to
defendant Vasquez in either her deposition or her brief; therefore, defendant Vasquez
is dismissed as a party with prejudice.
passenger door window, Fossett "could not gather information from or have an
unobstructed view of the passenger compartment of the vehicle and the passenger."
(Id. at A-3; A-108-109) "Due to the lack of cooperation, Fossett called for an assisting
unit." (Id. at A-3)
3. It was about at this time that plaintiff approached the BMW, by her own
admission coming within 15 to 20 feet of the car. (D.I. 1, ex. A at 4; D.I. 37 at A136,
A142, A211) Defendants assert that they warned her to not interfere with the traffic
stop, 2 and that plaintiff and a second female 3 "were advised to go across the street
numerous times with negative results." (Id. at A4) Shortly after the incident and in her
complaint, plaintiff also asserted that she was told by police officers to "[g]et the ___ _
away from the car." (D.I. 1, ex. A at 4; D.I. 37 at A211) By the time of her deposition,
she was asked if she recalled either Fossett or Vasquez4 "telling [her] to leave the
immediate area of the stop." Her reply was "No." 5 (Id. at A 144) Although plaintiff
concedes that she conversed with her son, she denies telling him to disregard the
According to the deposition testimony of Fossett, he asked plaintiff to "just go
across the street or ... stop interacting," because plaintiff was communicating directly
with her son and "yelling to him, 'Don't give them your license or anything until they tell
you why you're pulled over."' (Id. at A 1O; see also id. at A3)
Plaintiff was accompanied by a second female, identified by plaintiff as a parent
of one of her children, Jaleesa Banner. (Id. at A142) According to the record, it was
one of plaintiff's employees, Diane Mallard, who eventually became involved in the
incident at issue, giving an interview and taking a video recording. (Id. at A 111, D.I. 39)
ldentified by plaintiff as "Officer Lopez." (Id. at A 144)
Plaintiff could only recall Vasquez speaking to her once, to say that he could
give her the food her son had brought. (Id. at A144)
police officers' instructions or using loud or offensive language. (Id. at A 135-36, A 14344)
4. When the assisting officers arrived on the scene, Fossett ordered Smith to
place plaintiff under arrest due to her continued interference with the traffic
investigation. (Id. at A3-4, A12-13, A34-35, A37) The parties have different accounts
of the attempts by Smith and Fossett to effectuate the arrest, with defendants
recounting plaintiff's efforts to physically resist arrest6 and plaintiff describing the force
used to effectuate the arrest. 7 At a minimum, however, it is undisputed that plaintiff
remained at the traffic stop, did not refrain from participating in some manner with the
police activity, and cannot be characterized as cooperating with police efforts to carry
out their duties. 8 After plaintiff was taken into custody, she was transported to the
emergency room by police officers due to her complaints of chest pain and wrist pain.
It is not easy to decipher the related medical records (id. at A79-94), but it appears that
plaintiff was discharged "with a negative work up," 9 then came back later that day "upset
that she was not given [a] proper work up" in the first instance. Plaintiff presented the
second time with complaints of right wrist pain and body-wide pain related to her earlier
/d. at A4, A14, A42-43.
fd. at A 147-149.
Facts confirmed by the video footage of the incident contained in the record.
(D. I. 39, physically submitted in D. I. 37 at A33 and A60)
During her first hospital visit, she was under arrest and accompanied by
defendants Fossett and Vasquez. According to plaintiff, Fossett did not allow her to
use the restroom, causing her to have an accident. (Id. at A160) Plaintiff also has
alleged that Fossett left her alone in a room with a man who was "psychotic," although
the duration of this incident appears to be momentary. (Id. at A 161-162)
interaction with police. 10 (Id. at A68) The discharge diagnosis was contusion of the left
wrist 11 and rib pain. (Id. at A61, A68) Plaintiff ultimately was charged with disorderly
conduct and resisting arrest and was released from custody. 12 Plaintiff contends in this
litigation that she continues to suffer from physical pain and weakness and emotional
5. Standard of Review. "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, 585 n. 10 (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,
Plaintiff went to the hospital the first time because she complained of chest
pain. She did not present the second time with chest pain and, in fact, has stopped
taking her heart and blood pressure medication because she is "upset with Fossett."
(Id. at A68, A171) Plaintiff has submitted no personal medical records from any health
Although exhibit A attached to plaintiff's brief appears to be an undated
photograph of her bruised right arm. (D.I. 42, ex. A)
lt is the court's understanding that all charges against plaintiff were
subsequently dismissed because the police officers failed to appear at her trial. Plaintiff
filed a Citizen's Complaint with the Wilmington Police Department Office of Professional
Standards, alleging that Officers Fossett, Smith, and Jones used excessive force, rude
and insulting language, and improperly handled plaintiff during her arrest, which
complaint was found to be unsubstantiated. (D.I. 37 at A-95-129)
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) &
(B). 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, 415 U.S.
at 587 (internal quotation marks omitted). 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).
6. 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 Podohnik 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. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is
merely colorable, or 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").
7. Qualified immunity defense. With respect to counts 1, 2, and 4, defendants
assert that they are protected from suit by the qualified immunity doctrine. (D.I. 36 at 8)
Under certain circumstances, government officials are protected from § 1983 suits by
qualified immunity. The doctrine of qualified immunity serves to protect officers from
civil liability "when they perform their duties reasonably." Pearson v. Callahan, 555 U.S.
223, 231 (2009). Accordingly, it gives "ample room for mistaken judgments," Hunter v.
Bryant, 502 U.S. 224, 229 (1991), whether the official's mistake is a mistake of fact,
mistake of law, or mistake based on mixed questions of fact and law, Pearson, 555
U.S. at 231. In the context of Fourth Amendment claims, qualified immunity operates to
"protect officers from the sometimes 'hazy border between excessive and acceptable
force,' and to ensure that before they are subjected to suit, officers are on notice their
conduct is unlawful." Saucierv. Katz, 533 U.S. 194, 206 (2001) (quoting Priesterv.
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (internal citation omitted)).
8. The court makes two inquiries when analyzing qualified immunity. Under the
constitutional inquiry, the court examines "whether the facts that a plaintiff has alleged
or shown make out a violation of a constitutional right." Pearson, 555 U.S. at 232
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (citation omitted). Second, the
court inquires "whether the right at issue was 'clearly established' at the time of a
defendant's alleged misconduct." Pearson, 555 U.S. at 232. Courts have the
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand. Id. at
9. Unlawful arrest and detainment (count 2), and malicious prosecution
(count 4). Plaintiff was arrested for disorderly conduct and resisting arrest. (D.I. 1, ex.
A at 6) Plaintiff alleges that defendants Fossett and Smith did not have probable
cause, nor did they have a reasonable suspicion, to seize her. (Id. at 8) Defendants
argue that there are sufficient facts to demonstrate that Fossett and Smith had probable
cause to effectuate plaintiff's arrest under 11 Del. C. § 1301 (2), that is, for "engag[ing]
with at least 1 other person in a course of disorderly conduct as defined in paragraph
(1) of this section." Paragraph 1 describes a whole gamut of possible conduct, but
defendants in their brief highlight plaintiff's "continued refusal to obey Officer Fossett's
order to disperse," a violation of 11 Del. C. § 1301 (1 )(e) ("Congregating with other
persons in a public place and refusing to comply with a lawful order of the police to
disperse."). (D.I. 36 at 15-16) As to the first prong of the qualified immunity analysis,
the court concludes that a Fourth Amendment violation could not be made out even
with a favorable view of plaintiff's submissions. As noted above, there is no dispute that
Fossett ordered plaintiff to get away from the BMW. A review of the video footage also
demonstrates that individuals other than plaintiff started congregating in the vicinity of
the BMW, and that these bystanders were interacting with both plaintiff and the police.
The record contains sufficient undisputed facts to support a probable cause
determination as to plaintiff's arrest for disorderly conduct. 13 Therefore, defendants had
Even if the court were required to address the second prong of the qualified
immunity analysis, it is evident that in the specific context of this case - an ordinary
traffic stop with third party participants like plaintiff - it would not be clear to a
reasonable officer that arresting plaintiff for disorderly conduct would violate her Fourth
probable cause to initiate a prosecution against plaintiff. Defendants' motion for
qualified immunity is granted with respect to counts 2 and 4.
10. Excessive force (count 1). The parties agree that Graham v. Connor, 490
U.S. 386 (1989), "clearly establishes the general proposition that use of force is
contrary to the Fourth Amendment if it is excessive under objective standards of
reasonableness." Saucier, 533 U.S. at 201-202; Pearson, 555 U.S. at 232. Taking the
facts in the light most favorable to plaintiff, the court concludes that a Fourth
Amendment violation "could be made out." Saucier, 533 U.S. at 201. The next step,
therefore, is to determine, "in light of the specific context of the case," whether plaintiff's
Fourth Amendment rights were clearly established. Id. The Supreme Court in Saucier
has explained this inquiry in terms of whether the record contains "substantial grounds
for the officer to have concluded he had legitimate justification under the law for acting
as he did." Id. at 208. The Court also recognized in its analysis that under Graham,
"the right [attendant to an arrest] to use some degree of physical coercion or threat
thereof' must be balanced with the circumstances of the arrest, keeping in mind the fact
"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." Graham, 490 U.S. at 397. Consequently, "[u]nder
qualified immunity, police officers are entitled to a certain amount of deference for
decisions they make in the field." Giles v. Davis, 427 F.3d 197 (3d Cir. 2005) (citing
Saucier, 533 U.S. at 204-205). Moreover, it is sometimes difficult, e.g., "for an officer to
determine how the relevant legal doctrine ... will apply to the factual situation the
officer confronts. An officer might correctly perceive all of the relevant facts but have a
mistaken understanding as to whether a particular amount of force is legal in those
circumstances. If the officer's mistake as to what the law requires is reasonable,
however, the officer is entitled to the immunity defense." Saucier, 533 U.S. at 205. To
put the point differently, "[q]ualified immunity encompasses mistaken judgments that
are not plainly incompetent." Giles, 427 F.3d at 207 (citing Hunter v. Bryant, 502 U.S.
11. As the court understands the Supreme Court's jurisprudence on qualified
immunity, the first prong of the analysis views the facts in the light most favorable to the
party asserting the injury, consistent with Saucier, 533 U.S. at 201. The second prong,
however, is not so limited but, instead, requires the court to objectively review the facts
of each case to determine "whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted," id. at 202, or whether the officer's
"actions fell in the 'hazy border between excessive force and acceptable force."'
Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (citing Saucier, 533 U.S. at 206)). The
inquiry is highly individualized and fact specific, with the Supreme Court identifying
three factors for consideration: (1) the severity of the crime at issue; (2) whether the
suspect posed an imminent threat to the safety of the police or others in the vicinity;
and (3) whether the suspect attempted to resist arrest or flee the scene. Santini v.
Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Graham, 490 U.S. at 396); see also
Sharrar v. Fe/sing, 128 F.3d 810, 822 (3d Cir. 1997) (providing additional factors
including "the possibility that the persons subject to the police action are themselves
violent or dangerous, the duration of the action, whether the action takes place in the
context of effecting an arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at one time"). It is with
this precedent in mind that the court reviews the record in terms of plaintiff's excessive
12. As noted above, plaintiff admits that she interacted with the police officers
during the traffic stop, a fact confirmed by the video footage. 14 Having inserted herself
into the traffic stop, the video footage demonstrates that the stop attracted bystanders.
(Id. at A 13, A-44, A 152-53) The video footage reflects that, while trying to apply
handcuffs, Smith placed his hands on plaintiff's jaw line and ear area, "like a pressure
point hold." (Id. at A149) Although plaintiff maintains that Smith and Fossett kicked her
(leaving bruises), and grabbed her neck, throat, and face, effectively chocking her, the
court is unable to locate any footage demonstrating that plaintiff was at any time
chocked or kicked by Smith or Fossett. The video depicts plaintiff speaking while Smith
has his hands on her jaw and ear area, as handcuffs are applied and as she is removed
from the scheme. It is apparent from the video that plaintiff was both very emotional
and uncooperative and that the force used was reasonable. 15 Finally, consistent with
The video was apparently taken by a person at the scene and depicts a
frenetic, fluid series of events beginning with plaintiff facing and against a parked van
with two then three officers around her attempting to apply handcuffs. Smith appears to
have his hand under plaintiff's jaw line and then between the area of her ear and jaw
Plaintiff's version of the facts differs from that of Smith in the following respects.
Plaintiff was holding a cup of hot tea during the incident: she alleges that it spilled
when Smith grabbed her wrist for handcuffing; Smith asserts that he advised her to put
the cup down and it spilled when a bystander took the cup from her. Smith asserts that,
the only medical records submitted, the injuries she sustained as a result of the arrest
were neither significant nor permanent. 16 This evidence suggests that, at minimum,
defendants' conduct fell in the "hazy border between excessive and acceptable force."
Saucier, 533 U.S. at 206. Therefore, plaintiff's Fourth Amendment right to be free from
excessive force was not clearly established under the particularized facts of this case.
Defendants' motion for summary judgment is granted in this regard.
13. First Amendment retaliation (count 3). Defendants argue in support of
their summary judgment motion that First Amendment retaliation claims apply only in
employer-employee contexts. (D.I. 36 at 18) Although this contention is not legally
correct, plaintiff has only cited a single case that is outside the scope of the
employment relationship. In Estate of Smith v. Marasco, 318 F.3d 497 (2003), the
Third Circuit explained that a plaintiff must prove the following three elements in a First
Amendment retaliation claim: (1) that plaintiff engaged in protected activity; (2) that the
after receiving the order to arrest plaintiff, he placed her right wrist in handcuffs and she
began to flail and scream. Although plaintiff concedes that she was yelling that Smith
was hurting her arm, plaintiff denies that she resisted the arrest. There is no dispute
that plaintiff was pushed against a van, according to Smith to help control her. Plaintiff
asserts that Smith and Fossett kicked her (leaving bruises), and grabbed her neck,
throat, and face, effectively choking her ("like a pressure point hold," id. at A149) and
leaving scars. Smith admits that he attempted on several occasions to use pressure
points (first underneath her jaw line and second between her ear and jaw line) to get
her to comply, and that plaintiff's face was up close to the van during this time. Plaintiff
asserts that force was used to get her into the van; Smith asserts that, once plaintiff
was handcuffed, she was peacefully escorted to the patrol car. (Id. at A42-46; A146151)
The court recognizes that plaintiff describes her injuries otherwise. At this
stage of the proceedings, however, when plaintiff has been represented by counsel,
discovery is closed, and she certainly had access to her personal medical records, the
court declines to simply accept her version of the facts when there is opposing objective
government responded with retaliation; and (3) that the protected activity was the cause
of the retaliation. Id. at 512. Like cases decided in the employment context, however,
plaintiff's decedent in Smith had engaged in prior protected activity, that is, he had
written complaints against the state police officers now accused of retaliatory conduct.
Id. at 502. In this case, all of the conduct - the alleged protected activity and the
alleged retaliation - are occurring contemporaneously in the context of police activity.
· The court declines to find that the record supports the elements of a First Amendment
retaliation claim and, therefore, grants defendants' motion for summary judgment in this
regard. See generally Startzell v. City of Philadelphia, Pa., 533 F.3d 183, 204 (3d Cir.
2008) (although an individual's speech may be protected by the First Amendment, her
"choice to disobey police orders is not").
14. Intentional infliction of emotional distress ("llED") (count 5). Plaintiff
alleges that Fossett intended to physically and mentally harm her. (D.I. 1, ex. A at 10)
llED is a state tort claim, and Fossett argues that he is immune from liability under the
Municipal Tort Claims Act ("the Act"), 10 Del. C. §§ 4010-13. (D.I. 36 at 18) The Act
provides that "all government entities and their employees shall be immune from suit on
any and all tort claims seeking recovery of damages." 10 Del. C. § 4011 (a). The Act
does not protect employees from conduct that was "performed with wanton negligence
or wilful and malicious intent." 10 Del. C. § 4011 (b). Assuming for purposes of this
motion practice that Fossett's conduct falls within the scope of§ 4011 (b) exception to
immunity, there still must be sufficient evidence of record as to plaintiff's llED claim to
withstand summary judgment. According to the Delaware Supreme Court, it is the
court's duty to determine whether Fossett "intentionally engaged in extreme or
outrageous conduct that caused severe emotional distress." Hunt ex rel. DeSombre v.
State, Dep't of Safety & Homeland Sec., Div. of Delaware State Police, 69 A.3d 360,
368 (Del. 2013). Plaintiff alleges that Fossett cursed at her, accused her of faking her
injuries, forced her to urinate in her clothes, and placed her alone in a room with a
psychotic man. (Id. at A159-160) Plaintiff further testified that she began seeing a
therapist after the incident. (Id. at A171) As noted, plaintiff has submitted no personal
medical records from any health care professional; consequently, there is no objective
evidence of any continuing emotional distress. Nor is there any objective evidence that
her being left alone with a "psychotic" man was anything but momentary. (Id. at 161162) The court declines to find that plaintiff's remaining allegations constitute actions
so extreme and outrageous as to fall within the scope of 10 Del. C. § 4011 (b).
Defendants' motion for summary judgment is granted as to count 5.
15. Conclusion. For the reasons stated, defendants' motion for summary
judgment is granted as to counts 1, 2, 3, 4, and 5. An order shall issue.
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