FULLMAN v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/20/16. 12/20/16 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA et al.,
M E M0 R A N D U M
EDUARDO C. ROBRENO, J.
December 20, 2016
Plaintiff Andrew Fullman ("Plaintiff" or "Fullman"), a
disabled African American, brings this action against Defendants
City of Philadelphia ("the City"), Police Officer Terrance
Lynch, Police Officer Jared Krzywicki, Police Lieutenant Stephen
Cassidy, Police Officer Rasheen Dickerson, 1 Police Officer
Mitchell, 2 and Police Officer John Doe (collectively,
"Defendants"), asserting civil rights violations for three
separate series of incidents.
Before the Court is Defendants' renewed motion for
summary judgment on all claims against all Defendants, which
Plaintiff named an Officer "Dickinson" with Badge No.
6434 in his original complaint, and he continues to use this
name even in his most recent f ilings--but Defendants have
clarified that this officer's last name is actually "Dickerson."
Defs.' Renewed Mot. Summ. J. at 2 n.1, ECF No. 80.
Neither of the parties identify Police Officer
Mitchell's first name.
Plaintiff has opposed. For the reasons that follow, the Court
will grant Defendants' motion for summary judgment in full.
June 13, 2006 Incident 3
The first incident at issue in this case occurred on
June 13, 2006, while Police Officer Terrence Lynch ("Officer
Lynch") was patrolling the area around the Roosevelt Mall. See
Third Am. Compl. '!! 10 ("TAC"), ECF No. 77; Pl.' s Resp. Ex. 1 at
1, ECF No. 81-3. On that afternoon, Plaintiff drove his car to
the post office in that area, intending to park in one of the
handicap spots nearby, Fullman Dep. at 9:21-24, Dec. 9, 2008,
ECF No. 70-3 [hereinafter Fullman 2008 Dep.]. All of the
handicap spots, however, were occupied at that time, id. at
10:15-16, and Plaintiff noted that one car parked in a handicap
spot did not have a handicap tag, id. at 9:21-24.
Plaintiff then parked his car in the fire lane. Id. at
11:1-2. Two other cars, both of which Plaintiff noted were
occupied, were also parked in the fire lane at that time. Id. at
11:23-12:8. Plaintiff then got out of his car and approached
Officer Lynch to report the car parked in a handicap spot
without a handicap tag. Id. at 10:22-11:2. After Plaintiff told
The facts alleged here were first brought in an
earlier case, Civil Action No. 08-2781, which the Court later
consolidated with the instant action. See Order dated June 11,
2014, ECF No. 48.
Officer Lynch that he was parked in the fire lane and Officer
Lynch asked Plaintiff to move his car, the two began to argue.
See id. at 11:1-2, 12:11-14; see also Pl.'s Resp. Ex. 1 at 1.
Plaintiff claims that "[Officer Lynch]
kind of got an attitude
and I got an attitude back with him and the argument started,"
id. at 13:6-9, which included the use of profanities by both
parties, id. at 13:15-16 ("I told him he didn't have to curse at
me, so I started cursing back.").
At that time, Plaintiff's pitbull, which he had left
in his car, began to "go crazy." Id. at 13:18-24; see also
Pl's Ex. 1 at 2. Plaintiff then walked away from Officer Lynch
to get back into his car. See Fullman 2008 Dep. at 14:1-20.
While Plaintiff was sitting in his car, Officer Lynch grabbed
him and pulled him out of the car by his left arm.
Id. at 14:17-
20, 15:16-21. Officer Lynch then threw Plaintiff against the car
and kicked his legs open in order to frisk him. Id. at 17:1-15.
While placing handcuffs on Plaintiff, Officer Lynch twisted or
bent back Plaintiff's left thumb. Id.; see also id. at 18:12-14.
Officer Lynch then arrested Plaintiff for disorderly conduct and
ticketed him for parking in the fire lane. See Pl.'s Resp. Ex. 1
While Plaintiff was waiting in Officer Lynch's patrol
car, several other officers reported to the scene.
Dep. at 19:1-7.
One of those officers asked Plaintiff if he had
any health conditions, and Plaintiff disclosed that he was
diabetic. Id. at 19:11-15, 19:20-20:1. Plaintiff was also
wearing a diabetic bracelet at the time of the incident. Id. at
19:14-15. Thereafter, the officers joked about Plaintiff being
diabetic. Id. at 19:1-7. One officer said that Plaintiff "may be
a little hyper because maybe his sugar is high." Id. at 19:1112.
After several minutes of waiting in the patrol car,
Plaintiff was driven to police headquarters for processing, and
after spending an additional twenty to thirty minutes at the
police station, he was released. Id. at 20:9-20. Plaintiff was
charged with disorderly conduct, see Pl.'s Resp. Ex. 1 at 1, and
the police contacted the Philadelphia Animal Care and Control
Association to take custody of Plaintiff's pitbull. Pl.'s Opp.
Ex. 1 at 2.
Later that evening, Plaintiff went to Nazareth
Hospital complaining of back and left thumb pain. Fullman 2008
Dep. at 22:6-9. He was diagnosed with a sprained back and thumb
and prescribed several painkillers, including codeine,
propoxyphene, hydrocodone, and oxycodone. See Pl.'s Resp. Ex. 1
Plaintiff has not identified any of these officers.
at 3-5. Several days later, on June 19, 2006, Plaintiff followed
up with his primary care physician, who made the same diagnoses
as the doctors at Nazareth Hospital. Fullman 2008 Dep. at 23:1318. Plaintiff received medical treatment and physical therapy
for several weeks thereafter, id. at 23:19-23, and he stated
during his 2008 deposition that he was still experiencing back
and thumb pain at that time, id. at 24:8-10. During his 2011
deposition, Plaintiff added that he wore a splint on his thumb
for two weeks following the incident. Fullman Dep. at 63:8-12,
June 22, 2011, ECF No. 70-4 [hereinafter Fullman 2011 Dep.].
In support of his allegations that the arrest was
based on a discriminatory or retaliatory motive, Plaintiff
stated as follows:
[M]y handicap tags were visible to [Officer Lynch]
because he was behind me.
And that should have
signified, you know, that that's someone that has a
disability. And by me being African American in a
and having handicap tags motivated his
Fullman 2008 Dep. at 38:17-22.
After Officer Lynch failed to appear at a hearing
scheduled for May 31, 2007, and continued to July 19, 2007, the
disorderly conduct charges against Plaintiff were dismissed for
lack of prosecution. Id. at 21:2-18. Plaintiff reported the
incident to the Internal Affairs Division of the Philadelphia
Police Department (the "Internal Affairs Division" or "Internal
Affairs"), see Pl.'s Resp. Ex. 2, ECF No. 81-4, but the parties
have not provided any evidence showing whether or how that
report was handled, investigated, or resolved.
Incidents between March 23, 2005, and
February 16, 2009
Plaintiff next alleges that, throughout a series of
incidents that occurred between 2005 and 2009, the Philadelphia
Police Department displayed a pattern of hostility and
retaliated against him for filing numerous incident reports with
the Internal Affairs Division. 5
The facts alleged in connection with these incidents
were first brought in an earlier case, Civil Action No. 09-3559,
which the Court consolidated with the present action. See Order
dated June 11, 2014, ECF No. 48. The specific incidents alleged
included the following:
On March 23, 2005, non-defendant Officer Perkins "informed
[Plaintiff] that he was being issued a citation for illegal
window tinting but was instead issued a citation for
obstructing of a windshield," TAC! 22, ECF No. 77;
In early April 2005, non-defendant Officer Williams stopped
Plaintiff for illegal window tinting, and three weeks
later, he stopped Plaintiff again for rolling through a
stop sign, id. at ! 23;
On January 12, 2006, non-defendant Officer Martex stopped
Plaintiff for illegal window tinting and made offensive
race-related comments, id. at ! 24;
On June 27, 2006, non-defendant Officer McMichael
deliberately obstructed two handicapped parking spaces and
made offensive comments regarding Plaintiff, id. at ! 25;
On August 23, 2006, an unnamed police officer improperly
questioned Plaintiff regarding his disability, id. at ! 26;
On November 17, 2006, unnamed police officers followed
Plaintiff's vehicle and nearly caused a collision, id. at
At this point in the proceedings, the only claims
remaining from Plaintiff's 2009 action are those against Officer
Mitchell arising from an incident that began on May 16, 2008,
while Plaintiff was driving south on 57th Street in
Philadelphia. Fullman 2011 Dep. at 15:7-10, 15: 18-20. Police
Officer Mitchell ("Officer Mitchell"), who was driving behind
Plaintiff at the time, activated his lights and sirens at some
point during the drive. Id. at 16:6-8. Despite seeing that the
patrol car's lights and sirens were activated, Plaintiff "got
nervous" and did not stop. Id. at 16:8-9. Instead, he kept
On July 17, 2007, two unnamed police officers questioned
Plaintiff about a child left unattended in a vehicle parked
nearby, and then one drew a gun and pointed it at
Plaintiff's head, causing dizziness and tightness in
Plaintiff's chest, id. at~ 28;
The two officers involved in the July 17, 2007 incident
refused to return Plaintiff's driver's license for several
days, id. at ~ 29;
On May 16, 2008, Defendant Officer Mitchell followed
Plaintiff's vehicle, pointed his gun at Plaintiff's head,
handcuffed Plaintiff, and placed him in a police van, and
then he searched Plaintiff's vehicle, damaging it, id. at
On June 12, 2008, non-defendant Officer Rosado followed
Plaintiff's vehicle and issued Plaintiff a careless driving
citation, which caused Plaintiff's driver's license to be
temporarily suspended before the citation was "dropped by
the Commonwealth," id. at ~ 34; and
On February 16, 2009, an unnamed police lieutenant
responded to two teenagers threatening Plaintiff with a
gun, but they later suspended the investigation after
learning Plaintiff's identity, id. at~ 35.
driving beyond city limits and into Yeadon, Pennsylvania. Id. at
Once he caught up to Plaintiff, Officer Mitchell
jumped out of his car, moved to the front of Plaintiff's car,
and pointed a gun at Plaintiff's car while asking Plaintiff to
step out of his car. Id. at 17:11-12. Plaintiff got out of his
car on his own volition, at which point he claims that Officer
Mitchell "kind of manhandled" him by grabbing his arm,
"slap[ping] handcuffs on him," and placing him into the patrol
car. Id. at 17:17-18, 19:9-15. Plaintiff testified that Officer
Mitchell did not hit, strike, or punch him, and he was not
thrown to the ground. Id. at 18:23-19:5. After being held in the
patrol car briefly, Plaintiff was released and allowed to return
to his own car. Id. at 20:24-21:5. He received citations for
failure to stop and reckless driving. Id. at 21:6-16.
April 3, 2008 Incident
The third incident occurred on April 3, 2008.
Plaintiff alleges that he was driving on North 51st Street that
day when he was pulled over by Police Officer Jared Krzywicki
for driving with tinted windows. TAC ! !
This is the original set of facts first alleged in
Civil Action No. 10-1536, which the Court later consolidated
with two other actions. See Order dated June 11, 2014, ECF No.
37-38; Fullman 2011 Dep. at 50:23-51:6. Plaintiff then argued
with Officer Krzywicki over whether his window tinting was
within the legal limits. Fullman 2011 Dep. at 52:1-6.
After Plaintiff called 911 requesting the presence of
a police supervisor, Police Lieutenant Stephen Cassidy
("Lieutenant Cassidy"), whom Plaintiff claims was familiar with
Plaintiff and his complaints to the Internal Affairs Division,
responded by reporting to the scene. TAC
39. At some point,
Police Officer Rasheen Dickerson ("Officer Dickerson") also
arrived at the scene. See id. at
40. When Plaintiff stepped
out of his car, Officer Dickerson "punched [him] in [his] chest
and the impact threw [him] back into the car and [he] banged
[his] shoulder up against the door frame." 7 Fullman 2011 Dep. at
52:17-21; see also id. at 53:2-11. Because of his shoulder
injury, Plaintiff asked the officers if he could go to the
hospital, but they denied his request. Id. at 53:10-13.
Plaintiff was issued a citation for tinted windows and released.
Id. at 53:14-20.
Plaintiff then drove himself to Mercy Hospital, where
he was diagnosed with a chest contusion and given a prescription
for Motrin. See Pl.'s Resp. Ex. 8, at 2-3, ECF No. 81-10.
Plaintiff followed up with his primary care physician several
Plaintiff does not claim that any of the other
officers used excessive force toward him during this traffic
stop. Fullman 2011 Dep. at 54:1-2.
weeks later, in late May 2008, because he continued to
experience left shoulder pain. See id. at 8. The doctor ordered
x-rays of Plaintiff's shoulder and referred him to physical
therapy. Id. at 10. X-rays showed no fracture or dislocation of
the shoulder. Id. at 12. Plaintiff alleges that he received
physical therapy two times per week for several months
thereafter. Fullman 2011 Dep. at 62:17-63:1.
In connection with this incident, Plaintiff filed an
Internal Affairs complaint against Officer Dickerson, Lieutenant
Cassidy, and Officer Krzywicki on April 3, 2008. See Letter from
Anthony P. DiLacqua, Oct. 30, 2008, Pl.'s Resp. Ex. 11, ECF No.
81-13. The Internal Affairs Division exonerated all three
officers on October 30, 2008, on the basis that "[w]ithout
[Plaintiff's] cooperation, a thorough investigation could not
prove [his] complaints," and there was "no evidence to support
[Plaintiff's] claim." Id.
Pattern of Discrimination and Harassment
In connection with all of the foregoing allegations,
Plaintiff claims that the police have been harassing him because
(1) his car has tinted windows;
(2) he drives a Buick LeSabre;
and (3) his car has handicapped tags. Fullman 2011 Dep. at 31:820.
First, Plaintiff believes he is being harassed due to
his tinted windows because "every time I get pulled over it's
something about the windows." Id. at 31:23-24. He alleges that
he had the windows "checked with the state troopers and they
said the windows are completely legal." Id. at 32:5-7.
Nevertheless, Philadelphia police officers have "sometimes"
given him tickets for the tinting. Id. at 32:14-16.
Second, Plaintiff alleges that he is harassed by
Philadelphia police for driving a Buick because the car is
"associated with young, Black males .
[a]nd crime." Id. at
33:2-7. He supports this proposition by explaining that he has
seen "a lot of Buicks pulled over," some of which have tinted
windows and some of which do not. Id. at 33:8-14. Plaintiff
admits, however, that officers have never referenced the type of
car he is driving after stopping him. Id. at 33:24-34:5.
Finally, Plaintiff believes he is being harassed due
to the handicap tags because officers can see the tags when they
pull up behind him and "[b]ecause a lot of handicapped people
are targeted." Id. at 34:17-19, 35:16-19.
As evidence of this pattern of harassment,
points to a December 7, 2006 letter from Lieutenant John Echols
of the Internal Affairs Division requesting an interview with
Plaintiff and stating as follows:
complaints against their employees very seriously, and
due to your ten prior complaints,
in which the
officers have been exonerated [of] any wrong-doing,
except for the two current investigations in our
possession right now[,]
I feel there must be an
underlying reason for this apparent harassment. It is
my intention to uncover that underlying reason and
Pl.'s Resp. Ex. 3, ECF No. 81-5.
Based on the above, Plaintiff brings claims under 28
1343 and 42 U.S.C.
1981, 1983, and 12188. He brings
the following six specific counts against all remaining
Defendants in this case 8 :
force, - - TAC
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