Rosser v. Donovan et al

Filing 151

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 10/5/2020. ***Copy mailed to Pro Se Plaintiff 10/5/2020*** (dlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARCUS J. ROSSER,
Plaintiff,
v.
THOMAS DONOVAN, et al,
Defendants.

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C.A. No. 16-381 (MN)

MEMORANDUM OPINION

Marcus J. Rosser – Pro Se Plaintiff
Mary A. Jacobson, First Assistant County Attorney, NEW CASTLE COUNTY OFFICE OF LAW, New
Castle, DE – Attorney for Defendants.

October 5, 2020
Wilmington, Delaware

NOREIKA, U.S. DISTRICT JUDGE:
I.

INTRODUCTION
Plaintiff Marcus J. Rosser (“Plaintiff” or “Rosser”), proceeds pro se and has been granted

leave to proceed in forma pauperis. (D.I. 6). He commenced this action on May 23, 2016. (D.I. 1).
The Amended Complaint is the operative pleading. (D.I. 57). Plaintiff is currently housed at South
Woods State Prison in South Bridgeton, New Jersey. Presently before the Court is Defendants’
renewed motion for summary judgment and Plaintiff’s opposition thereto. (D.I. 138, D.I. 139,
D.I. 140, D.I. 141, D.I. 145, D.I. 146, D.I. 147, D.I. 148). Briefing is complete.
II.

BACKGROUND
As alleged in the Amended Complaint, on July 14, 2014, Plaintiff was stopped and taken

into custody by New Castle County Detective Ellis. Plaintiff was taken to the New Castle County
Police Department and, placed in a holding cell. Plaintiff asked what was going on and why he
had been arrested. Plaintiff alleges that he was subjected to excessive force and that those present
failed to protect him after he refused commands by Defendants. He seeks compensatory damages
for physical and emotional injuries.
Defendants move for summary judgment on the grounds that they are entitled to qualified
immunity because the use of force was reasonable under the circumstances; Plaintiff’s allegations
are inconsistent and unsupported by objective evidence; the handcuff claim is negated by objective
and undisputed evidence; and the undisputed facts do not support the failure to intervene claim.
Defendants also move to dismiss the claims for emotional injuries as insufficiently pleaded.
(D.I. 140). Plaintiff opposes on the grounds that there remain genuine issues of material facts on
whether Defendants’ conduct was reasonable. (D.I. 145).

III.

FACTS PRESENTED BY THE PARTIES 1
Rosser was identified as the suspected shooter at a July 13, 2014 late night shooting at

Georgetown Village Apartments. (D.I. 141 at 29). Rosser was taken into custody around
12:45 a.m. on July 14, 2014, and detained at New Castle County Police Headquarters Turnkey.
(D.I. 141 at 29; D.I. 145-1 at 3 ¶ 1, 5). The Justice of the Peace Court issued a search warrant
sought by Defendant New Castle County Police Detective Thomas Orzechowski (“Orzechowski”)
to obtain DNA and gunshot residue from Rosser. (D.I. 141 at 57-65).
A approximately 5:00 a.m., Defendant Senior Corporal Thomas Donovan (“Donovan”)
reported for duty as the Turnkey officer. (D.I. 141 at 19, 21). At approximately 5:40 a.m.,
Orzechowski and Defendants Detective John Mikus (“Mikus”) and Officer Jeffrey Geortler
(“Geortler) arrived at the cell block to execute the search warrant and, along with Donovan, went
to the room where Rosser was being held. (Id. at 21, 27, 29, 34). Donovan unlocked and opened
the door to the holding room. (Id. at 21, 29). Mikus was holding evidence collection vials and
intended to enter the room. (D.I. 141 at 29, 36). Rosser states that he had never seen a gunshot
residue kit and had never before had officers attempt to recover gunshot residue from him.
(D.I. 145-1 at 3 ¶ 3).
Use of Force Reports state that Rosser stood at the doorway, stepped through the door
towards Mikus, and came within approximately one foot of Mikus. (Id. at 36). According to
Rosser, he asked why he was being detained and why he was under arrest. (D.I. 141 at 111;
D.I. 145-1 at 3 ¶ 2). Rosser states that Defendants did not respond, and he repeatedly asked the
question in a non-combative manner to several different officers while in custody.

(Id.).

According to Mikus, he perceived Rosser’s actions as physically threatening, and he told Rosser

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The facts are construed in favor of Plaintiff, the non-moving party.
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to sit down. (D.I. 141 at 36). Rosser did not comply and instead moved forward. (Id. at 29, 36,
43).
Mikus believed that Rosser was going to push him, and he stepped back and turned to put
the evidence vials on the ground. (Id. at 36). According to Donovan, as Mikus stepped back,
Donovan attempted to enter the room from the right side of the doorway and came face-to-face
with Rosser. (Id. at 21). According to Orzechowski, Rosser was given an additional verbal order
to back up, and Rosser did not comply. (Id. at 29). Donovan extended his arms outward to move
Rosser back into the room, but Rosser pushed Donovan in the chest and attempted to leave the
holding room. (Id. at 21, 29, 43). Rosser disputes that he pushed any officer. (D.I. 145-1 at 3
¶ 4).
When he was deposed, Rosser testified that he could not remember what happened next
although his affidavit filed in opposition to the motion for summary judgment provides some facts.
(D.I. 141 at 113-120; D.I. 145-1 at 3-4). Use of Force Reports indicate that at this point Donovan
grabbed Rosser by the shoulder/head area to bring him to the ground. (D.I. 141 at 21, 29, 36, 43).
Geortler delivered a knee strike to the right knee to stop Rosser from resisting, but it was
ineffective. (Id. at 43). Use of Force Reports state that Rosser resisted by lowering his bodyweight
and getting into a crouching position. (Id. at 21, 29, 43). Donovan pulled Rosser in a downward
motion out of the doorway, and both men fell to the ground and against a desk located outside of
the holding room. (Id. at 21, 36, 43). The officers attempted to control Rosser’s movements once
he was on the ground. (Id. at 36, 41). Donovan repeatedly told Rosser to stop fighting, stop
resisting, and to place his hands behind his back. (Id. at 21, 29). Mikus held Rosser’s upper body
with his hands, but Rosser attempted to get up. (Id. at 36). Donovan delivered several strikes with
a closed fist to Rosser’s upper body and head, but Rosser did not stop resisting and did not comply

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with Donovan’s verbal commands. (Id. at 21, 29, 36, 43). During this time, Mikus delivered
several strikes to Rosser’s abdomen/ribcage while Rosser continued to fight and physically resist.
(Id. at 36). Rosser’s affidavit states that he did not take an aggressive stance, did not take
aggressive steps towards officers, and did not physically resist officers at any point while in
custody. (D.I. 145-1 at 3 ¶ 5).
While attempting to subdue Rosser, Mikus was given a set of handcuffs and secured half
the set on Rosser’s right wrist. (D.I. 141 at 36). To do so, Mikus had to forcefully pull the
handcuffs to cuff Rosser’s right arm behind his back, Rosser continued to forcefully pull back, and
Mikus saw the right handcuff tighten on the right wrist. (Id. at 36, 43). During this time,
Orzechowski struggled to get control of Rosser’s left hand to cuff it behind Rosser’s back. (Id. at
29). Rosser scratched at Orzechowski and broke the skin on his hands. (Id.). The officers were
eventually able to force Rosser’s free hand behind his back, and Mikus secured and handcuffed
Rosser’s left wrist. (Id. at 29, 36). Rosser’s legs were shackled. (Id. at 29).
Use of Force Reports indicate that Rosser continued to resist after he was cuffed and
shackled and did not comply with commands to stop resisting, stop fighting, and to calm down.
(Id. at 21, 29, 43). At this time Rosser was placed on his stomach and Orzechowski placed a knee
on Rosser’s back in attempt to control him. (Id. at 29-30). Rosser continued to try to scratch
Orzechowski. Orzechowski told Rosser to stop, but Rosser did not. (Id. at 21, 30). Also during
this time, Mikus held Rosser’s handcuffed wrists, and Rosser clawed at and ripped Mikus’ latex
gloves. (Id. at 36). Rosser’s affidavit states that the handcuffs were extremely tight, and Mikus
recognized they were too tight, but he did not adjust and double lock them. (D.I. 145-1 at 3 ¶ 7).
His affidavit also states that he was punched in the face multiple times by Donovan, kneed and

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punched by Mikus, kneed by Geortler, and held down with knees to his back by Orzechowski. (Id.
¶ 6).
Next, Orzechowski heard Rosser prepare to spit. (D.I. 141 at 30). As described by
Orzechowski, Rosser turned his head towards Donovan and spat a red substance in Donovan’s
direction. (Id. 30). During his deposition Rosser denied that he spat at Donovan and explained
that Donovan was holding his head, he did not warn the officers before spitting, Donovan was on
his left, and he spat towards the left, the spit did not go far and landed on the floor. (Id. at 121123, 178). Donovan turned Rosser’s head away from the officers to face the wall and held his
head in that position until Geortler placed a spit sock on Rosser’s head. (Id. at 21, 30, 43). Rosser
was held in this position until the ambulance arrived. (Id. at 30).
When Rosser was placed on the stretcher he complained that the handcuffs were too tight.
(Id. at 125). According to Rosser, he cried out in agony and pleaded with multiple officers in an
attempt to have the cuffs loosened as they were causing him pain. (D.I. 145-1 at 3 ¶ 9). The Use
of Force Reports states that Donovan checked the handcuffs, found them to be a little tight,
loosened them and then double locked them. (D.I. 141 at 21). They also state that Geortler
properly fit Rosser’s handcuffs and double locked them once Rosser was secure in the ambulance.
(Id. at 43).
Defendants Officer Timothy Collins (“Collins”) and Detective Eric Christopher
(“Christopher”) accompanied Rosser to Christiana Care Hospital and remained with him until they
returned to police headquarters. (Id. at 57). Neither were present during the use of force. (Id. at
49, 57). Rosser states that at the hospital he was afraid to tell emergency room physicians what
happened because he had been threatened by an unnamed New Castle County officer whom he
could not described. (D.I. 141 at 131; D.I. 145-1 at 3 ¶ 11.1). Medical records indicate that at the

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hospital Rosser was personally interviewed and examined. (D.I. 141 at 210). Rosser’s handcuffs
were not removed because the officers were concerned about staff safety.

(Id. at 211).

Photographs taken at the hospital indicate that the spit hood was removed. (Id. at 199-201). Upon
examination Rosser was observed as having swelling and bruising of the right orbit, swelling and
a small laceration of the lip, and dried blood at the left nostril. (Id. at 210-211). Rosser “declined
TdaP booster. [D]enies blood at back of throat, does not want to open mouth wide with use of
tongue depresser for exam.” (Id.). Clinical impression was epistaxis 2 and contusion/ecchymosis.3
(Id.).
Eleven photographs were taken of Rosser after the incident: seven while he was at
Christiana Hospital and four when he returned to the police station. (Id. at 198-209). Photographs
taken after Rosser was released from the hospital showed cuts to both wrists as a result of Rosser
rolling on the handcuffs before they were double locked. (Id. at 43). Two of the photographs
show a person’s finger in-between the metal of the handcuff and each of Rosser’s wrist. (Id. at
204, 205). During his deposition, Rosser stated that that the photographs were accurate. (Id. at
136-137). Contrary to the Use of Force reports that indicate the handcuffs were loosened and later
properly fitted, Rosser testified the handcuffs and leg cuffs were not loosened from the time they
were placed on him at the police station until the time they were taken off following his return
from the hospital to the police station. (Id. at 136-137, 175-176).
Rosser testified that on July 14, 2014, when medical staff performed his intake at Howard
R. Young Correction Institution (“HRYCI”) he lied to the staff when he said a bruise on his face

2

Hemorrhage from the nose; nosebleed. See https://www.tabers.com/tabersonline/view/
Tabers-Dictionary/733132/all/epistaxis (last visited Sept. 30, 2020).

3

Common bruise. See https://www.healthline.com/health/ecchymosis (last visited Sept 30,
2020).
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was from a fight the previous day. (Id. at 142). In his affidavit, Rosser states that he disclosed his
injuries to physicians at HRYCI and was told there was nothing they could do to help. (D.I. 1451 at 3 ¶ 12.1). On July 14, 2014, Rosser was cleared for housing in segregation. (D.I. 141 at 248).
The next day, July 15, 2014, Rosser was admitted to the infirmary for medical observation due to
right eye swelling. (Id.). Medical examination on July 16, 2014 revealed left suborbital swelling,
minor healed facial skin abrasions, and no other lesions or findings noticed. (Id.). Rosser denied
pain. (Id.). The same day, medical noted that Rosser was “OK to stay ‘in the hole.’” (Id.). When
Rosser was seen on October 25, 2014, following a Code 8 (i.e., fight between inmates) he denied
pain and no injuries were noted. (Id.).
Rosser testified the next medical treatment he received related to the July 2014 incident
was on May 20, 2016. (Id. at 166-168). At that time, he provided a history of neck, lower back,
and finger tingling sensation and numbness that start from the neck and continue to his fingers and
from his lower back radiating to his left calf, all of which affect his daily activities. (Id. at 238).
He reported that the sensational changes and pain started two years ago when he was arrested, that
he did not have these sensations prior to his arrest, and that he has taken over the counter
medication but it has no affect. (Id.). On May 26, 2016, Rosser was assessed as having transient
neuralgia vs. spasm. (Id.). When Plaintiff was seen on July 14, 2016, he complained of back, leg,
ankle, and neck pain. (Id. at 235). Upon examination he had full range of motion to his neck,
neuro checks were within normal limits, and bilateral strength was strong and equal. (Id.).
According to Rosser, as a result of the force used, he reinjured his lower back, and he
suffered a bloody nose, black eye, swollen face, busted lip, and was emotionally distraught.
(D.I. 145-1 at 3 ¶ 8). Rosser states that he has scars on his wrist from the handcuffs, now suffers
from numbness in his hand with a tingling sensation, and his hands lock up so he is unable to

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perform everyday tasks. (Id. ¶ 10). Following the July 14, 2014 incident Rosser was charged with
resisting arrest and offensive touching of a law enforcement officer. (D.I. 141-1 at 51). He was
acquitted of the charges. (D.I. 146 at 4 ¶ 2).
IV.

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). When determining whether a genuine issue of material fact exists, the Court must
view the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
F.3d 180, 184 (3d Cir. 2007). A dispute is “genuine” only if the evidence is such that a reasonable
jury could return a verdict for the non-moving party, and a factual dispute is material when it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 477
U.S. 242, 247-49 (1986).
The nonmoving party bears the burden to establish the existence of each element of his
case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In doing so, the non-moving party must
present specific evidence from which a reasonable fact finder could conclude in his favor.
Anderson, 477 U.S. at 248; Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Summary judgment should be granted if no reasonable trier of fact could find for the non-moving
party. Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir. 1989).
V.

DISCUSSION
A.

Personal Involvement

This Court first addresses the issue of personal involvement. There is no record evidence
that Christopher or Collins had any personal involvement during the events complained of by

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Rosser. The record evidence is that these Defendants escorted Rosser to the hospital, but were not
involved in any use of force or in failing to prevent any use of force.
It is well established that 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. Such allegations, however, must
be made with appropriate particularity. Id.
Even when construing the evidence in the light most favorable to Rosser, no reasonable
jury could find that Defendants Christopher and Collins were personally involved in the events as
alleged by Rosser. As previously noted, these Defendants were either not present or arrived after
the events in question and were tasked with escorting Rosser to the hospital. Absent evidence of
their personal involvement, no jury could grant a verdict in favor of Rosser and against Christopher
and Collins.
Accordingly, because they had no personal involvement, this Court will grant the motion
for summary judgment as to Christopher and Collins.
B.

Excessive Force

The remaining Defendants – Donovan, Mikus, Orzechowski, and Geortler – move for
summary judgment on the grounds that the actions they took were reasonable under the
circumstances and as such they are protected by qualified immunity.

Rosser argues that

Defendants are not entitled to qualified immunity and contends the issue should be resolved by a
jury.

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The Due Process Clause of the Fourteenth Amendment “protects a pretrial detainee from
the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389,
397 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). “[A] pretrial detainee
can prevail by providing only objective evidence that the challenged governmental action is not
rationally related to a legitimate governmental objective or that it is excessive in relation to that
purpose.” Kingsley, 576 U.S. at 398; see also Aruanno v. Maurice, 790 F. App’x 431 (3d Cir
2019). “[A] pretrial detainee must show only that the force purposely or knowingly used against
him was objectively unreasonable. Kingsley, 576 U.S. at 396-97. The reasonableness of the force
used is determined by the Kingsley factors: (1) the relationship between the need for the use of
force and the amount of force used; (2) the extent of the plaintiff’s injury; (3) any effort made by
the officer to temper or to limit the amount of force; (4) the severity of the security problem at
issue; (5) the threat reasonably perceived by the officer; and (6) whether the plaintiff was actively
resisting. Id. at 397 (citing Graham, 490 U.S. at 396). The list is not exhaustive, but the Kingsley
factors provide a guide for types of objective circumstances that are “potentially relevant to a
determination of excessive force.” Id.
Given the events occurred during the execution of a search warrant, were this Court to
analyze the issue under the Fourth Amendment, this Court would also be required to determine
whether Defendants’ actions were objectively reasonable. “In executing a search warrant officers
may take reasonable action to secure the premises and to ensure their own safety and the efficacy
of the search.” Los Angeles Cty. v. Rettele, 550 U.S. 609, 614 (2007) (citations omitted). “[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.” Graham, 490 U.S. at 397; Kopec

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v. Tate, 361 F.3d 772, 777 (3d Cir. 2004); Mosley v. Wilson, 102 F.3d 85, 95 (3d Cir. 1996). The
reasonableness factors under the Fourth Amendment are the same as those under the Due Process
clause for pretrial detainee claims. See Graham, 490 U.S. at 396. 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.” Id. Unreasonable actions include the use of excessive
force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary
period of time. Rettele, 550 U.S. at 614 (citations omitted).
A court cannot apply the reasonableness standard mechanically. See County of Sacramento
v. Lewis, 523 U.S. 833, 850 (1998). Rather, objective reasonableness turns on the “facts and
circumstances of each particular case.” Graham, 490 U.S. at 396. A court must make this
determination from the perspective of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight. See ibid. A court must also account for
the “legitimate interests that stem from [the government’s] need to manage the facility in which
the individual is detained,” appropriately deferring to “policies and practices that in th[e]
judgment” of jail officials “are needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979).
It is undisputed that Rosser was arrested and held as the suspect of a serious and violent
crime. The record evidence is that Rosser was placed in a holding room and there is no evidence
that he was otherwise handcuffed or restrained in any manner. Defendants appeared at the holding
room to execute a search warrant. The record reflects that Rosser complied with all commands
until confronted by Mikus with vials to collect Rosser’s DNA and obtain gunshot residue from
Rosser. At that point Rosser concedes that he refused repeated commands to back away from the
door and to sit down. Although Rosser states that he did not know that the vials Mikus had were

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to collect evidence, it is undisputed that once Mikus arrived Rosser failed to follow the commands
of the officers present. It is also undisputed that Mikus perceived Rosser’s actions as physically
threatening and that he believed Rosser was going to push him. It was at this point that Defendants
took action to restrain Plaintiff. The Use of Force Reports prepared contemporaneously with the
events of July 14, 2016 describe in detail the altercation between Defendants and Rosser and
indicate that Rosser resisted Defendants’ attempts to subdue him. After he was subdued, Rosser
spat in Donovan’s direction. When Rosser was deposed he was unable to remember what
happened once he decided he did not need to back away from the door or sit down, although his
later filed affidavit disputes that he took an aggressive stance or steps toward any officer or
physically resisted officers at any point.
Rosser claims that he was handcuffed too tightly and this caused him pain and injury. He
complained that the handcuffs were tight and that the handcuffs were never loosened. Photographs
show there was sufficient room to place the little finger between the handcuffs and Rosser’s wrist.
See e.g., Graham-Smith v. Wilkes-Barre Police Dep’t, 739 F. App’x 727 (3d Cir. 2018) (affirming
lower court’s decision approving handcuff “pinky test,” looking at the totality of circumstances,
and noting no record evidence that tight handcuffs caused injury beyond superficial lacerations).
A Use of Force Reports indicate that photographs showed injuries to Rosser that were cuts to both
wrists.
Rosser was taken to the hospital and medical records indicate that examination revealed a
bruised and swollen right eye, a bloody nose, and a swollen lip with a slight cut. By the time
Rosser arrived at the hospital he was not bleeding. Medical records do not make any mention of
an injury to Rosser’s wrists or that Rosser complained of wrist pain. In addition, Rosser was seen
by prison medical personnel on July 14 and 15, 2014, and those medical records refer only to a

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slightly swollen right cheek bone, and eye swelling with no mention of wrist injuries or wrist pain.
As of July 16, 2014, Rosser denied pain and examination revealed mild left suborbital swelling
and minor healed facial skins abrasions, with no other lesions or findings noticed, including no
mention of injuries to his wrists. When Rosser was seen by medical on October 15, 2014, after a
fight with another inmate, he denied pain and no injuries were noted. It was not until two years
later, on May 20, 2016, that Rosser sought treatment related to the incident for injuries to his neck,
lower, back, and tingling sensations in his finger and left calf, injuries about which he had not
before complained. This Court notes that when Rosser was seen on July 14, 2016, again with
complaints of back, leg, ankle, and neck pain, upon examination Rosser had full range of motion
to his neck, neuro checks were within normal limits, and bilateral strength was strong and equal.
The injuries as described in the medical records, and particularly those that are contemporaneous
with the events of July 14, 2014, however, can only be described as de minimus, and do not indicate
that Rosser was subjected to excessive force.
In applying the Kingsley factors, this Court finds that the force of used was objectively
reasonable. As to the relationship between the need for the use of force and the amount of force
used, Rosser admits that he refused commands to back away from the door and to sit down; as to
the extent of his injury, the record reflects that any injuries were de minimus; as to any effort made
by officers to temper or to limit the amount of force, the record reflects that Rosser refused
commands to stop fighting, stop resisting, place his hands behind his back, and to calm down; as
to the severity of the security problem at issue, the record reflects that Rosser was in a holding
room but otherwise unsecured; as to the threat reasonably perceived, Marcus believed that Rosser’s
actions were physically threatening and that Rosser was going to push him; and as to whether
Rosser was actively resisting, the contemporaneous Use of Force Reports indicate that he was,

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although Rosser testified that he could not remember what happened after he refused commands
to back away from the door, and his later filed affidavit states that he did not resist. 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,” this Court concludes that the force used by Defendants was objectively
reasonable to gain control of the situation. See Graham, 490 U.S. at 396-397.
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.
C.

Failure to Intervene/Failure to Protect

Finally, Defendants move for summary judgment on the failure to intervene/protect issue
raised by Rosser. Rosser did not address the issue in his reply brief and it is considered waived.
Regardless, as discussed above, summary judgment will be granted for Defendants on the
excessive force issue and, without an underlying finding of the excessive use of force, there can
be no claim for failure to intervene or protect. See Nifas v. Coleman, 528 F. App’x 132 (3d Cir.
June 2013); Wardell v. City of Erie, 2015 WL 6134014 (W.D. Pa. Oct. 16, 2015) (“If there is no
excessive force, then there is no corresponding duty to intervene.”).
As previously discussed, the use of force was objectively reasonable under the
circumstances. Hence, Defendants had no duty to intervene or protect. Therefore, the Court will
grant the motion for summary judgment on the failure to intervene/protect claim.
VI.

CONCLUSION
For the above reasons, the Court will grant Defendants’ motion for summary judgment

(D.I. 138). An appropriate order will be entered.

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