Filing 22


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA J E R M A IN E HERRING, P laintiff v. D E L A W A R E COUNTY, et al., D efe n d a n ts : : : : : : : C IV IL ACTION N O . 07-4395 MEMORANDUM S T E N G E L , J. M arch , 2009 T h is is a counseled civil rights action stemming from an incident which occurred d u rin g the arrest of Jermaine Herring in Chester, Delaware County, Pennsylvania. The d e f en d a n ts have filed a motion for summary judgment to which the plaintiff has re s p o n d e d . For the reasons that follow, I will grant the motion in its entirety. I. BACKGROUND O n October 20, 2005, at approximately 7:30 p.m., police officers from the D e law a re County Criminal Investigation Division and the Drug Task Force began to e x e cu te a valid search warrant at 1302 Honan Street in Chester, Pennsylvania, a vacant p ro p e rty owned by the plaintiff.1 Compl. 12, 13. Mr. Herring had been performing m ainten an c e at a nearby residence, and went to 1302 Honan Street to pick up parts for a w a te r heater. See Herring Dep. at 83-85, 87-91. When he entered the property, it was 1 The complaint indicates that the property was owned by Mr. Herring. Compl. 13. At his deposition, however, Mr. Herring testified that his mother was the owner of 1302 Honan Street, and that he was unaware that his name appeared on the property's deed. Herring Dep. at 82. d a rk except for the police officer's flashlights. He heard someone say "Police," 2 and he w a s grabbed by police officers, placed in handcuffs, and was struck with blunt objects f o u r or five times about the face, head, and body. Id. at 96, 98-99, 101, 103-105. He did n o t see the officer who was striking him, but testified that there were possibly twenty (20) p o lic e officers present. Id. at 106, 107, 109, 112, 113. Mr. Herring insists that he gave th e officers no reason to think that he would resist them. Nevertheless, he was arrested a n d charged with simple and aggravated assault, resisting arrest, and possession with in te n t to deliver cocaine. Mr. Herring was taken to the hospital and treated for various in ju rie s, including abrasions to the face, a fractured jaw, dislocated teeth, and e x c ru c ia tin g face and neck pain. Id. at 116, 117. Prior to trial, the assault and resisting a rre st charges were withdrawn by the prosecutor. He was convicted of the drug charges a n d is currently serving a sentence in state prison. The plaintiff filed a complaint in this court against Delaware County, its Criminal In v e stig a tio n Division, its Drug Task Force, Detective John Newell, and "various u n a rm e d members of the Delaware County Drug Task Force," 3 alleging excessive force (C o u n t I); false arrest (Count II); illegal customs, policies, practices (Count III); 2 This testimony conflicts with an allegation found in the complaint that "prior to the assault of the plaintiff, the defendant police officers failed to announce that they were law enforcement officers and otherwise identify their authority and purpose to the plaintiff." Compl. 15. 3 Because these unarmed members of the Drug Task Force have yet to be identified at this stage of the proceedings, I will dismiss them as defendants in this action. 2 n e g lig e n c e (Count IV); assault (Count V); battery (Count VI); intentional infliction of e m o tio n a l distress (Count VII); and the denial of equal protection of law (Count VIII). I d is m is s e d the Delaware County Criminal Investigation Division and its Drug Task Force as defendants in this action, and dismissed Counts IV and VIII. See Herring v. Delaware C o u n ty, et al., 2007 U.S. Dist. LEXIS 92993 (E.D. Pa. December 18, 2007). II. LEGAL STANDARD S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if the evidence is such th a t a reasonable jury could return a verdict for the non-moving party. Anderson v. L ib e rty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might a f f e c t the outcome of the case under governing law. Id. A party seeking summary judgment always bears the initial responsibility for inf o rm ing the court of the basis for its motion and identifying those portions of the record th a t it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v . Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of p ro o f on a particular issue at trial, the movant's initial Celotex burden can be met simply b y "pointing out to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Id. at 325. After the moving party has met its initial burden, 3 " th e adverse party's response, by affidavits or otherwise as provided in this rule, must set f o rth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by m a k in g a factual showing "sufficient to establish the existence of an element essential to th a t party's case, and on which that party will bear the burden of proof at trial." Celotex C o rp . v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence p re se n te d on the motion in the light most favorable to the opposing party. Anderson v. L ib e rty Lobby, Inc., 477 U.S. at 255. The court must decide not whether the evidence u n m is ta k a b ly favors one side or the other but whether a fair-minded jury could return a v e rd ict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party h a s exceeded the mere scintilla of evidence threshold and has offered a genuine issue of m a te ria l fact, then the court cannot credit the movant's version of events against the o p p o n e n t, even if the quantity of the movant's evidence far outweighs that of its o p p o n e n t. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3 d Cir. 1992). III. DISCUSSION A . Counts I, II, V, VI, and VII F iv e of the remaining six counts in this complaint allege charges against the " in d iv id u a l defendants." Detective John Newell, however, is the sole remaining in d iv id u a l defendant. He is being sued in both his individual and official capacities. The 4 d e f e n d a n t s argue that Mr. Herring's claims of Excessive Force (Count I), False Arrest (C o u n t II), Assault (Count V), Battery (Count VI), and the Intentional Infliction of E m o tio n a l Distress (Count VII) must be dismissed because Mr. Herring has failed to e sta b lis h that Defendant Newell was the individual who assaulted him on October 20, 2 0 0 5 . I agree. All of these claims against Defendant Newell require competent and admissible e v id e n c e that he committed the alleged acts against Mr. Herring on the evening in q u e stio n . For example, in order for Mr. Herring to establish a claim for Excessive Force u n d e r the Fourth Amendment, he must establish that Detective Newell used force which w a s objectively unreasonable. Graham v. Connor, 490 U.S. 386, 388 (1989). Mr. Herring has produced no competent and admissible evidence that it was D e te c tiv e Newell who committed any act of force against him. At his deposition, Mr. H e rrin g testified that after he was released from the hospital following the assault, he sp o k e with Police Officer William Murphy, a Chester City Police Officer who patrols his n e ig h b o rh o o d , to inquire about what had happened to him on the night of his arrest. Id. at 1 2 3 -1 2 6 . Officer Murphy allegedly placed a call to someone on his "two-way," and in f o rm e d Mr. Herring that it was Defendant Newell from Newtown Square who had a s s a u lte d him, and that the detective was a "hothead." Id. at 129-135. Mr. Herring also testified that at his preliminary hearing in the criminal case C h e ste r City Police Officer Blair told him that Defendant Newell was the individual who 5 h a d arrested Mr. Herring: He said that it was Detective Newell. He didn't say he was th e one that broke my jaw. He said he was the one that was th e re that arrested me and was over there where everything h a p p e n e d at. I don't know who the other officer was. Id. at 144. Mr. Herring also claims that Officer Blair made this statement in front of " s o m e females" but Mr. Herring does not know their names and thus is unable to ask th e m to testify on his behalf in this case. Id. at 145. Mr. Herring's attorney "tried to get [ O f f ic e r Blair] to testify that day on the stand at the preliminary hearing, but they said, no, th e y won't let him testify." Id. at 144. Mr. Herring also said that his attorney did his own in v e stig a tio n at the hearing and found out that it was, in fact, Detective Newell who had a ss a u lte d Mr. Herring. Id. at 146. When asked who the attorney's source for that in f o rm a tio n was, Mr. Herring said, "You have to ask him that." Id. Mr. Herring's testimony establishes only that he was struck by an unknown in d iv id u a l after he was on the floor and handcuffed. He testified that he does not know w h o struck him and that there were multiple police officers present during the assault. He a ttem p ts to identify Detective Newell as committing an act of physical force upon him b a se d upon hearsay. The purported statements of the two police officers and an attorney c a n n o t be relied upon in opposition to a motion for summary judgment. Rule 56(c) of the F e d e ra l Rules of Civil Procedure provides that: The judgment sought should be rendered if the pleadings, the d isc o v e ry and disclosure materials on file, and any affidavits s h o w that there is no genuine issue as to any material fact and 6 th a t the movant is entitled to judgment as a matter of law. Further, Rule 56(e)(2) provides as follows: When a motion for summary judgment is properly made and s u p p o rte d , an opposing party may not rely merely on a lle g a t io n s or denials in its own pleading; rather, its response m u s t by affidavits or as otherwise provided in this rule set o u t specific facts showing a genuine issue for trial. If the o p p o s in g party does not so respond, summary judgment s h o u ld , if appropriate, be entered against that party. Here, Mr. Herring has failed to establish admissible evidence on the record that D e te c tiv e Newell was the individual who had assaulted him. He has produced no a ffid a v its from Officer Murphy, Officer Blair, or from Mr. Herring's former attorney stating that they have competent evidence to establish that Detective Newell struck Mr. H e rrin g after he was handcuffed. Instead, he relies on his own deposition testimony re g a rd in g conversations he had with these three individuals. This evidence cannot be c o n sid e re d because it constitutes inadmissible hearsay. See Blackburn v. United Parcel S e rv ., Inc., 179 F.3d 81, 95 (3d Cir. 1999) (a hearsay statement that is not capable of b e in g admissible at trial should not be considered on a summary judgment motion). In Blackburn, the Third Circuit Court of Appeals found that a plaintiff who had no p e rs o n a l knowledge of material information but relied upon statements of others which he o ffe re d for the truth of the matter asserted must fall within an exception to the hearsay ru le and be admissible in order to be considered in opposition to a summary judgment m o tio n . Id. at 96. The court found that the statements did not fall within any of the ex ce p tio n s and, therefore, the plaintiff's evidence was insufficient to overcome summary 7 ju d g m e n t. Id. at 103. Further, in Coyle v. Kristjan Palusalu Maritime Co., Ltd., 83 F. Supp. 2d 535, 542 (E .D . Pa. 2000), a plaintiff attempted to oppose a summary judgment motion by p ro v id in g a statement from another individual that a wire upon which he tripped was put u p by the crew of a ship. The court found that this statement was inadmissible hearsay a n d was not competent evidence upon which plaintiff could rely to oppose a motion for s u m m a ry judgment. Id. at 542. Mr. Herring would have to establish that the statements of Officers Murphy and B la ir, and his former attorney are admissible under one of the exceptions to the hearsay ru le . A review of the applicable Federal Rules of Evidence establishes that Mr. Herring c a n n o t bring these statements within any of the exceptions to the hearsay rule. See F e d .R .E v id . 803 and 804. Accordingly, Mr. Herring cannot rely upon these statements a lo n e to establish that Detective Newell used force upon him.4 As no other evidence has b e e n produced to support that contention, I will enter judgment in favor of Defendant N e w e ll on Mr. Herring's excessive force claim in Count I. I am also not persuaded by Mr. Herring's responsive argument that I should accept these hearsay statements based on his plan to call the declarants as witnesses at trial. It is true that hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that "would be admissible at trial." Smith v. Kyler, 295 Fed. Appx. 479, 483 (3d Cir. 2008) (citing Williams v. Borough of West Chester, 891 F.2d 458, 466 n.12 (3d Cir. 1989)). This is not the case here. First, the declarants have not provided sworn affidavits outlining their potential testimony. Only Mr. Herring's deposition testimony accuses Detective Newell. Second, because the declarants themselves have no independent knowledge of who assaulted Mr. Herring, their testimony would still be inadmissible as hearsay. 8 4 T h e same analysis applies to Mr. Herring's state law claims of assault and battery. To establish that Detective Newell committed an assault and battery, Mr. Herring must e sta b lis h that Detective Newell intentionally, by force, attempted to injure him and a c tu a lly inflicted the threatened, harmful or offensive contact without justification. Renk v . City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). Mr. Herring has produced no c o m p e ten t and admissible evidence to support his allegation that Detective Newell c o m m itte d an assault and battery upon him. In Botkin v. Metropolitan Life Insurance, 9 0 7 A.2d 641 (Pa. Super. 2006), the Pennsylvania Superior Court stated that: "...a m o tio n for summary judgment cannot be supported or defeated by statements that include in a d m is s ib le hearsay evidence." Id. (citing Isaacson v. Mobile Propane Corp., 461 A.2d 6 2 5 (1983)). Accordingly, because Mr. Herring cannot establish that Detective Newell co m m itted an assault and battery upon him, I will enter judgment in Detective Newell's fa v o r on Mr. Herring's claims of assault and battery. M r . Herring also brings a claim of false arrest pursuant to 42 U.S.C. 1983 against D e tec tiv e Newell.5 This claim alleges that the action of the individual defendants in c h a rg in g him "with aggravated assault and resisting arrest for allegedly attacking the o ffic e rs , charges that were withdrawn by the Commonwealth for lack of evidence, 5 In his response to the defendants' motion for summary judgment, Mr. Herring maintains that he has a viable action for malicious prosecution. However, his complaint does not allege a claim for malicious prosecution. Count II is a claim for false arrest, a separate and distinct cause of action. See Compl. 38-41. 9 c o n stitu te d arrest without probable cause, in violation of the laws of the Constitution of th e United States, in particular the Fourth and Fourteenth Amendments thereof, and 42 U .S .C . 1983." Compl. 39. The defendants argue that this count must also be d is m is s e d . Mr. Herring supports his allegation of false arrest by claiming that the police had ch arg ed him with crimes for which probable cause did not exist and which were s u b s e q u e n t ly withdrawn by the prosecution. The test for an arrest without probable cause is an objective one, based on the facts available to the officers at the moment of arrest. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). The Third Circuit has h e ld that probable cause need only exist as to any offense that could be charged under the c irc u m s ta n c e s for an arrest to be valid. Id. Here, a review of the affidavit of probable cause for the criminal complaint in d ic a te s that Mr. Herring's property had been under surveillance. See Exh. A (attached to Complaint). There was a valid search warrant of which Mr. Herring and his brother J a m a r were targets. The affidavit provides: D u rin g the execution of the warrant, your affiant and other o ffic e rs located approximately four ounces of cocaine, (field te ste d positive) some packaged individually for sale, along w ith a large amount of packaging material in the heater room a re a of the residence. . . Officers then announced their p re se n c e . Jermain Herring . . . then attempted to fight with o ffic e rs and violently resisted arrest by punching and kicking o ffic e rs . . . Jermain Herring . . . [was] finally secured and p la c e d under arrest. Id. If the "resisting arrest" allegation of which Mr. Herring complains were excised from 10 th e affidavit, probable cause would still exist for the charge of possession with intent to d e liv e r a controlled substance. The undisputed facts demonstrate that the officers had a re a so n a b le basis to believe that Mr. Herring had committed a crime at the moment of his a rr e s t, and thus his arrest was valid. Barna, 42 F.3d at 819. Furthermore, Mr. Herring cannot attack his criminal conviction by a civil action u n d e r 42 U.S.C. 1983 without establishing that the conviction has been reversed on d ire c t appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination or called into question by the issuance of a writ of habeas c o rp u s . Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). In Heck, the Supreme Court re jec ted 1983 as a vehicle to challenge the lawfulness of a criminal judgment. A claim f o r damages bearing that relationship to a conviction or sentence that has not been so in v a lid a te d is not cognizable under 1983. 512 U.S. at 486-487. The Court further in s tru c te d district courts, in determining whether a complaint states a claim under 1983, to evaluate whether a favorable outcome would necessarily imply the invalidity of a c r im in a l judgment. Id. at 487. Here, success in Mr. Herring's claim of false arrest ag ains t Defendant Newell would necessarily imply the invalidity of Mr. Herring's c o n v ictio n and sentence in the state court. Mr. Herring cannot demonstrate that his state c o u rt conviction or his sentence has been invalidated. Id. Accordingly, I will enter ju d g m e n t in favor of Detective Newell on Count II. Mr. Herring's complaint also includes a state law claim for intentional infliction of 11 e m o t io n a l distress. Compl. 54-56. In order to establish such a claim, a plaintiff must sh o w that the conduct of the defendant was outrageous and that it caused the plaintiff s e v e re emotional distress. Kazatsky v. King David Memorial Park, 527 A.2d 988, 991 (P a . 1987) (citing Restatement (Second) of Torts, 46(1)).6 The Pennsylvania Supreme C o u rt noted that the burden of proof of a plaintiff claiming intentional infliction of e m o tio n a l distress requires that an injury be established by expert medical confirmation th a t the plaintiff actually suffered the claimed distress. Kazatsky, 527 A.2d at 995. The c o u rt stated, "we therefore conclude that if 46 of the Restatement is to be accepted in th is Commonwealth, at the very least, existence of the alleged emotional distress must be s u p p o rte d by competent medical evidence." Id. Mr. Herring has not produced evidence sufficient to establish a claim for the in te n tio n a l infliction of emotional distress. First, he has failed to prove that Detective N ew ell was involved in any outrageous conduct on the night of the arrest. Second, Mr. H e rrin g testified that he sought no psychiatric treatment, counseling services, or suffered a n y mental injury as a result of the alleged assault of October 20, 2005. See Herring Dep. a t 151, 152. Accordingly, because Mr. Herring cannot establish a claim for intentional in f lictio n of emotional distress, I will enter judgment in favor of Detective Newell in 6 The Restatement (Second) of Torts, 46(1) provides: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." 12 C o u n t VII. B. The Claim Against the County of Delaware F in a lly , Mr. Herring asserts a claim against the County of Delaware alleging that th e Defendant County failed to train and/or discipline its police officers in the use of fo rc e . See Compl. 43. In Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 6 5 8 , 691 (1978), the United States Supreme Court held that municipalities may not be f o u n d liable on a theory of respondeat superior under 42 U.S.C. 1983. Municipalities a n d their officials may only be found liable for a violation of 1983 when a municipal e m p lo ye e or official deprives the plaintiff of his federally protected rights pursuant to a m u n icip al policy or custom. Id. Thus, in order to recover from Delaware County under 1 9 8 3 , Mr. Herring must: (1) identify a policy7 or custom 8 that deprived him of a federally p ro te c te d right; (2) demonstrate that Delaware County, by its deliberate conduct, acted as th e "moving force" behind the alleged deprivation; and (3) establish a direct causal link b e tw e e n the policy or custom and Mr. Herring's injury. Bd. of the County Comm'rs v. B row n , 520 U.S. 397, 404 (1997). In addition, keeping in mind that Mr. Herring must establish that through A municipal policy, for purposes of section 1983, is a "statement, ordinance, regulation, or decision officially adopted and promulgated by [a government] body's officers." Monell, 436 U.S. at 690. Such a policy "generally implies a course of action consciously chosen from among various alternatives." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). 8 7 A municipal custom, by contrast, is a "persistent and widespread" practice of municipal action that is "so permanent and well-settled as to constitute a custom or usage with the force of law." Monell 436 U.S. at 691. 13 d e lib e ra te conduct, Delaware County was the moving force behind his alleged injury, it is im p o rta n t to note that "proof of a single incident by lower level employees acting under c o lo r of law does not suffice to establish either an official policy or custom." Berg v. C o u n ty of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000); Wakshul v. City of Philadelphia, 9 9 8 F. Supp. 585, 591 (E.D. Pa. 1998) (citing Tuttle, 471 U.S. at 823). Accordingly, in o rd e r to survive summary judgment, Mr. Herring must establish that policy makers of the C o u n ty of Delaware were aware of similar unlawful conduct and tolerated same. Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990). Here, Mr. Herring has proffered no evidence that the County of Delaware has an u n c o n stitu tio n a l policy, practice or custom allowing the use of excessive force or that it is d e lib e ra tely indifferent to the rights of its citizens in failing to train and/or discipline its p o lic e officers who use excessive force. Moreover, he has produced no evidence to estab lish that any policy maker within the County of Delaware was aware of any pattern o r practice of the use of excessive force. Therefore, I will enter judgment in favor of the County of Delaware in Count III. An appropriate Order follows. 14 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA J E R M A IN E HERRING, P laintiff v. D E L A W A R E COUNTY, et al., D efe n d a n ts : : : : : : : C IV IL ACTION N O . 07-4395 ORDER S T E N G E L , J. A N D NOW, this day of March, 2009, upon careful consideration of the d e f e n d a n t s' motion for summary judgment (Document #16), and the plaintiff's response th e re to (Document #18), IT IS HEREBY ORDERED that the motion is GRANTED in its e n t i r e t y. T h e Clerk of Court is directed to mark this case CLOSED for all purposes. BY THE COURT: /S/ Lawrence F. Stengel LAWRENCE F. STENGEL, J. IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA J E R M A IN E HERRING, P laintiff v. D E L A W A R E COUNTY, et al., D efe n d a n ts : : : : : : : C IV IL ACTION N O . 07-4395 O R D E R OF J U D G M E N T S T E N G E L , J. A N D NOW, this day of March, 2009, in accordance with my Order g ra n tin g the defendants' motion for summary judgment, and in accordance with Federal R u le of Civil Procedure 58, judgment is hereby entered on behalf of the defendants and a g a in s t the plaintiff. BY THE COURT: /S/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.

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