FULLMAN v. CITY OF PHILADELPHIA et al

Filing 82

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

ANDREW FULLMAN,

CIVIL ACTION
NO. 10-1536

Plaintiff,

v.
CITY OF PHILADELPHIA et al.,
Defendants.

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
1

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.
2

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.

I.

FACTUAL BACKGROUND
A.

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
3

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.
2

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
at 1.

3

While Plaintiff was waiting in Officer Lynch's patrol
car, several other officers reported to the scene.
Dep. at 19:1-7.

4

Fullman 2008

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
4

Plaintiff has not identified any of these officers.

4

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
Buick
with
tinted
windows,
I
believe
kind
of
motivated,
and having handicap tags motivated his
action.
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
5

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.

B.

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

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
! 27;

6

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
~~ 31-33;
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.
7

driving beyond city limits and into Yeadon, Pennsylvania. Id. at
16:21-23.
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.

C.

April 3, 2008 Incident
The third incident occurred on April 3, 2008.

6

Plaintiff alleges that he was driving on North 51st Street that
day when he was pulled over by Police Officer Jared Krzywicki
("Officer Krzywicki")

for driving with tinted windows. TAC ! !

6

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.
48.
8

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
7

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.

9

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.

D.

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.

10

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,

Plaintiff

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:

11

Mr.
Fullman,
the
police
department
takes
all
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
correct it.
Pl.'s Resp. Ex. 3, ECF No. 81-5.
Based on the above, Plaintiff brings claims under 28
U.S.C.

§

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 :
COUNT I

Personal injury/excessive
force, - - TAC <JI<JI 44-50; 9
see

COUNT II

Property
<JI<JI 51-57;

COUNT III

Denial of due process,
<JI<JI 58-66;

COUNT IV

Denial
id. at

COUNT V

of
<JI<JI

damages,

equal
67-73;

see

use

id.

see id.

protection,

of

at
at

see

Discrimination,
in violation
of
the
Americans
with
Disabilities
Act ("ADA") , see id. at <JI<JI 74-80;
and

8

Each count additionally names Police Officer Rosado
("Officer Rosado")--but he is no longer a Defendant in this
case. See infra 16 n.13.
9

Throughout this litigation, the Court has construed
Plaintiff's "personal injury" claim as a claim for excessive
force in violation of the Fourth Amendment of the United States
Constitution.
12

COUNT VI

Harassment
and
id. at ~~ 81-82.

retaliation,

see

Plaintiff requests damages in excess of $500,000, comprising
punitive damages, property damages, costs, attorney's fees,
interest, and damages for pain and suffering. Id. at 23-24.

II.

PROCEDURAL HISTORY
The currently operative complaint in this action

consolidates Plaintiff's claims from three separate actions:
Nos. 08-2781, 09-3559, and 10-1536.
On June 20, 2008, Plaintiff, proceeding pro se, filed
Civil Action No. 08-2781 against the City, the Philadelphia
Police Department, and Officer Lynch. Dkt. No. 08-2781, ECF No.
3. On September 24, 2008, the City of Philadelphia and Officer
Lynch filed an Answer to Plaintiff's Complaint. Dkt. No. 082781, ECF No. 8. On April 13, 2009, the City of Philadelphia and
Officer Lynch filed a motion for summary judgment. Dkt. No. 082781, ECF No. 19. The case was placed in suspense on June 22,
2009, "due to Plaintiff's serious side effects and complications
from his medications which [were] causing confusion and changes
in his behavior." Dkt. No. 08-2781, ECF No. 26 (internal
quotation marks omitted).
On November 30, 2009, Plaintiff filed a complaint in
Civil Action No. 09-3559 against the City, the Philadelphia
Police Department, the Philadelphia Internal Affairs Division,
13

Officers Williams, Perkins, Martex, Mitchell, Rosado, and
McMichael, and John Does 1-5. Dkt. No. 09-3559, ECF No. 5. Some
time on or after January 22, 2010, service was accepted on
behalf of the City and Officer McMichael only. See Dkt. No. 093559, ECF No.

6. On February 18, 2010, the City and Officer

McMichael filed an answer to Plaintiff's complaint, Dkt. No. 093559, ECF No. 8, and on February 24, 2010, the City and Officer
McMichael filed a partial motion to dismiss, Dkt. No. 09-3559,
ECF No. 9. On March 15, 2010, Plaintiff filed a partial response
to Defendants' motion to dismiss. Dkt. No. 09-3559, ECF No. 10.
Following a hearing, all claims against Williams, Perkins,
Martex, and McMichael were dismissed as time-barred,

10

and the

case was placed in suspense as of April 27, 2010, "at
Plaintiff's request, due to his mental health condition and side
effects from his medication." Dkt. No. 09-3559, ECF No. 16.
On April 5, 2010, Plaintiff commenced Civil Action No.
10-1536, ECF No. 73, 11 but just over three weeks later, on April
27, 2010, the Court placed the case in civil suspense, again at
Plaintiff's request and "due to his mental health condition and
side effects from his medication," ECF No. 2.
10

This left only the claims in paragraphs 16-23 of the
2009 Complaint, which were allegations against Officers Mitchell
and Rosado.
11

Henceforth, all electronic filing ("ECF") references
are to the docket in Civil Action No. 10-1536.
14

On November 22, 2010, the Court ordered that Civil
Action Nos. 10-1536, 08-2781, and 09-3559 be removed from civil
suspense and returned to the active docket. ECF No. 5. The Court
further ordered that Civil Action Nos. 08-2781 and 09-3559 be
marked closed and consolidated with Civil Action No. 10-1536.
Id. The Court denied Plaintiff's motion to appoint counsel
without prejudice on February 10, 2011, on the basis that the
Court could not determine at that stage whether Plaintiff's
claims had any legal merit.

12

ECF No. 10.

On June 22, 2011, pursuant to a scheduling order dated
May 24, 2011,

Plaintiff was deposed. At the deposition,

Plaintiff hand-delivered an amended complaint dated April 5,
2010, to Defendants' counsel. See ECF No. 69

~

4 & n.1. On July

8, 2011, the City and Officers Dickerson and Cassidy filed an
answer to this amended complaint. ECF No. 18. The amended
complaint was not filed with the Court, however, until August
25, 2011. ECF No. 31.
Thereafter, the case was placed in suspense for a
period of time due to Plaintiff's health conditions. ECF No. 36.
Plaintiff later obtained counsel, Steward C. Crawford, Jr.,

12

Pursuant to Tabron v. Grace, 6 F.3d 147 (3d Cir.
1993), a district court considering a motion to appoint counsel
must determine as a threshold matter whether "the plaintiff's
claim has arguable merit in fact and law.u Id. at 155.
15

Esquire, who entered his appearance on November 6, 2013. ECF No.
44.
After a status and scheduling conference held on June
10, 2014, the Court removed the case from suspense and granted
Plaintiff leave to file an amended complaint by July 10, 2014.
ECF No. 48. The Court ordered that "[t]he claims set forth in
the amended complaint [would] relate back, respectively, to the
filing of the original complaint in each case from which the
claim was first asserted" and reminded the parties that "[o]nly
the claims asserted against the parties named in Civil Numbers
08-2781, 09-3559, and 10-1536 are consolidated in this case."
Id. at 2 & n.2.
On August 13, 2014, through counsel, Plaintiff filed
an amended consolidated complaint naming as Defendants the City,
Officers Dickerson, Cassidy, Krzywicki, Lynch, and Mitchell, and
a single John Doe. 13 ECF No. 51. Defendants filed an answer on

13

This amended complaint, unlike Plaintiff's prior
complaints, did not name as Defendants the Philadelphia Police
Department or Internal Affairs Division, nor did it name Police
Officers McMichael, Perkins, Rosado, Williams, or Martex.
Further, there is no evidence that summonses were ever issued to
these entities or individuals, and the City Solicitor's Office
did not file an answer to the amended complaint on behalf of any
of them. Accordingly, all of these entities and individuals were
terminated from this action on August 13, 2014.
16

September 17, 2014, ECF No. 52, and then amended that answer on
December 16, 2014, ECF No. 54. 14
The Court thereafter granted several extensions of the
discovery period. On December 16, 2015, the Court issued a
fourth scheduling order, in which it directed the parties to
complete discovery by January 15, 2016, fully brief any motions
for summary judgment by February 29, 2016, and attend a status
and scheduling conference on April 18, 2016. ECF No. 67.
On February 12, 2016, Defendants moved for summary
judgment. ECF No. 70. Plaintiff filed his response on March 1,
2016. ECF No. 72. On April 18, 2016, following a status and
scheduling conference, the Court entered a fifth scheduling
order granting Plaintiff leave to file a third amended complaint
on or before April 28, 2016. ECF No. 74. In this order, the
Court specifically instructed Plaintiff to "identify, as to each
count in the Third Amended Complaint, the theory of liability,
the defendants against whom that theory is asserted, and the
facts which support that theory." Id.

':IT

1.

On April 28, 2016, Plaintiff filed his third amended
complaint.

15

ECF No. 77. On May 16, 2016, the Court ordered

14

This amended answer is very nearly identical to the
initial answer; the only change is the inclusion of all named
Defendants.
15

The Court's orders generally refer to this document as
a "third amended complaint," see, e.g., ECF No. 74, while the
17

Defendants to file a renewed motion for summary judgment on or
before May 31, 2016. ECF No. 78. On May 18, 2016,

Defendants

filed an answer to Plaintiff's third amended complaint, ECF No.
79, and on May 31, 2016, Defendants filed a renewed motion for
summary judgment, ECF No. 80. On June 13, 2016, Plaintiff filed
a response to Defendants' latest motion for summary judgment.
ECF No. 81. The motion is now ripe for disposition.

III. MOTION FOR SUMMARY JUDGMENT
A.

Legal Standard
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion
for summary judgment will not be defeated by 'the mere
existence' of some disputed facts, but will be denied when there
is a genuine issue of material fact." Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986)). A

fact is "material" if proof of its existence or nonexistence

parties' filings refer to it as a "second amended consolidated
complaint," see, e.g., ECF Nos. 77, 79. For the sake of
simplicity, the Court refers to it in this memorandum as a
"third amended complaint" using the following logic: Plaintiff
filed his original complaint pro se on April 5, 2010 (ECF No.
73), an amended complaint prose on August 25, 2011 (ECF No.
31), a second amended complaint through counsel on August 13,
2014 (ECF No. 51), and a third amended complaint through counsel
on April 28, 2016 (ECF No. 77).
18

might affect the outcome of the litigation, and a dispute is
"genuine" if "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson, 477 U.S. at
248.
In evaluating a motion for summary judgment, the Court
views the facts in the light most favorable to the nonmoving
party. "After making all reasonable inferences in the nonmoving
party's favor, there is a genuine issue of material fact if a
reasonable jury could find for the nonmoving party." Pignataro
v. Port Auth., 593 F.3d 265, 268

(3d Cir. 2010). The moving

party bears the initial burden to show the absence of a genuine
issue of material fact. Anderson, 477 U.S. at 250. Once the
moving party meets this obligation, however, the burden shifts
to the nonmoving party to "set forth specific facts showing that
there is a genuine issue for trial." Id.

B.

Claims Against the City of Philadelphia
Defendants first argue that the Court should dismiss

all claims against the City because Plaintiff has not
established that his alleged injuries stemmed from any municipal
policy or custom. See Defs.' Renewed Mot. Summ. J., ECF No. 80,
at 7-9 [hereinafter Defs.' Mot.].
Municipalities may be held liable under § 1983 if
"action pursuant to official municipal policy of some nature

19

cause[s] a constitutional tort." Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691 (1978). Generally, municipal liability arises
where "the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that body's officers." Id. at 690. Municipalities can also face
liability under § 1983 "for constitutional deprivations visited
pursuant to governmental 'custom' even though such a custom has
not received formal approval through the body's official
decisionmaking channels." Id. at 690-91. A "custom" arises from
practices that amount to entrenched behavior by the municipal
employees. Id. at 691.
Under the framework outlined in Monell, a plaintiff
bringing a claim against a municipality under § 1983 must
establish that (1) the municipality had a policy or custom that
deprived the plaintiff of his constitutional rights;

(2) the

municipality acted deliberately and was the "moving force"
behind the deprivation; and (3) the plaintiff's injuries were
caused by the identified policy or custom. Id. at 692-94. "[A]
municipality cannot be held liable solely because it employs a
tortfeasor--or, in other words, a municipality cannot be held
liable under§ 1983 on a respondeat superior theory." Id. at
691.

20

As a threshold matter, and regardless of whether the
plaintiff proceeds on the basis of policy or custom, "a
plaintiff must show that an official who has the power to make
policy is responsible for either the affirmative proclamation of
a policy or acquiescence in a well-settled custom." Bielevicz v.
Dubinori, 915 F.2d 845, 850 (3d Cir. 1990)

(citing Andrews v.

City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990)). An official
is a policymaker if, as a matter of state law, the official is
responsible for making policy in the particular area of
municipal business in question. Hill v. Borough of Kutztown, 455
F.3d 225, 245-46 (3d Cir. 2006). The official's authority to
make the policy must be "final and unreviewable," id. at 245,
because "[u]nder § 1983, only the conduct of those officials
whose decisions constrain the discretion of subordinates
constitutes the acts of the municipality," Bielevicz, 915 F.2d
at 850.
"There are three situations where acts of a government
employee may be deemed to be the result of a policy or custom of
the governmental entity for whom the employee works, thereby
rendering the entity liable under§ 1983." Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 584

(3d Cir. 2003). First, a

policy or custom may be inf erred from the acts or omissions of
an officer-employee where "the appropriate officer or entity
promulgates a generally applicable statement of policy and the
21

subsequent act complained of is simply an implementation of that
policy." Id. at 584

(quoting Bd. of Cty. Comm' rs of Bryan Cty.

v. Brown, 520 U.S. 397, 417

(1997)

(Souter, J., dissenting)).

Second, a policy or custom may be inferred where "no
rule has been announced as 'policy' but federal law has been
violated by an act of the policymaker itself." Id. at 584
(quoting Bryan Cty., 520 U.S. at 417-18

(Souter, J.,

dissenting)). "In this situation, the choice of policy and its
implementation are one, and the first or only action will
suffice to ground municipal liability simply because it is the
very policymaker who is acting." Bryan Cty., 520 U.S. at 418
(Souter, J., dissenting).
Third, a policy or custom may be inferred where "the
policymaker has failed to act affirmatively at all," but "the
need to take some action to control the agents of the government
'is so obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional rights, that
the policymaker can reasonably be said to have been deliberately
indifferent to the need.'" Natale, 318 F.3d at 584
Bryan Cty., 520 U.S. at 417-18

(quoting

(Souter, J., dissenting)).

Here, Defendants argue that "[t]he Court should
dismiss all of Plaintiff's claims against the City because
Plaintiff has neither averred, nor produced evidence of, any
municipal policy or custom or any policymaker responsible for
22

his alleged harms." Defs.' Mot. at 7. They argue further that,
"to the extent Plaintiff attempts to state a failure-to-train
claim, such claim fails because Plaintiff has neither alleged
nor produced evidence of prior instances of police misconduct
caused by allegedly inadequate training." Id. at 9.
Plaintiff responds that Defendants "overlook[] the
simple fact that this is not a pure civil rights case, it is
also a personal injury claim directed against individual
officers in relation to excessive use of force at one or more of
the incidents." Pl.'s Resp. at 7, ECF No. 81-1. Referring to the
December 7, 2006, letter from Lieutenant John Echols of the
Internal Affairs Division, Plaintiff argues further that
Defendants "overlook[] the fact of [their] own .
acknowledgement of a pattern of harassment" that "alone
satisfies the Monell requirements in that a decision maker (i.e.
the [I]nternal [A]ffairs [D]ivision) promised to correct the
abuses; however, no action seems to have been taken since the
harassment escalated." Id.
The closest Plaintiff comes to alleging a policy or
custom under Monell is alleging a "pattern of harassment" and
"pattern of hostility" including "false arrests, brutality,
unmerited citations, and racial profiling." TAC

~

60. These

conclusory allegations, without more, are insufficient to plead
a policy or custom under Monell. Plaintiff's sole basis for his
23

contention that the stops are actually motivated by his
disability is that "a lot of handicapped people are targeted."
Fullman 2011 Dep. at 35:16-19. This is not evidence tending to
prove the existence of a policy or custom that fits the Monell
standard, nor is it evidence identifying a policymaker who was
responsible for his alleged harms.
Similarly, Plaintiff's argument based on the December
7, 2006, letter from Lieutenant John Echols of the Internal
Affairs Division fails to make out a policy or custom under
Monell. The content of the letter is not, as Plaintiff claims,
an "acknowledgment" of a pattern of harassment, let alone one
that satisfies the Monell standard. The letter states that the
officers named in Plaintiff's ten prior Internal Affairs
complaints were exonerated, and it leaves opens the possibility
that the officers very well may have been behaving reasonably
under the circumstances of each alleged incident. See Pl.'s
Resp. at 8 (quoting Ltr. from Lt. Echols, 12/7/2006, ECF No. 815). Moreover, the content of the letter is somewhat ambiguous in
that it could be interpreted to mean that Plaintiff is harassing
the police department, rather than the other way around.

In any

case, the letter certainly does not suggest that the "apparent

24

harassment" of Plaintiff is a result of any municipal policy or
custom. 16
Finally, the Court notes that Pennsylvania law
provides that "[n]o person shall drive any motor vehicle with
any sun screening device or other material which does not permit
a person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle." 75 Pa.
Cons. Stat.

§

4524(e) (1). Given that police officers are

authorized to enforce Pennsylvania's motor vehicle code, it is
difficult to imagine that any "custom" or "policy" of stopping
Plaintiff for tinted windows could be considered
unconstitutional.

17

Though Plaintiff may be correct that "tort immunity
extends only to negligent acts" and does "not protect 'crime,
actual fraud, actual malice or willful misconduct,'" Pl.'s Resp.
at 9 (quoting 42 Pa. Cons. Stat. Ann.

§

8542), Monell makes

clear that a respondeat superior theory is unavailable to
establish

§

1983 liability, see Monell, 436 U.S. at 691--and

16

Though perhaps not grounds for dismissing Plaintiff's
harassment and discrimination claims, the Court notes in passing
that the letter dates back to 2006 and thus does not concern the
timef rame relevant to most of the incidents at issue in this
litigation.
17

Plaintiff contends that the percentage of window
tinting on his vehicle is legal, but he does not dispute that
his windows are tinted. See TAC ~ 36.
25

therefore, whether the individual officers might be protected by
qualified immunity is a separate and distinct question that does
not bear on the Court's treatment of Plaintiff's claims against
the City.

18

For these reasons, the Court will grant Defendants'
motion for summary judgment as to all of Plaintiff's claims
against the City of Philadelphia.

C.

Due Process Claims
In Count III of his third amended complaint, Plaintiff

alleges denial of due process "in violation of 42 U.S.C. § 1983
and the U.S. and State Constitutions, including the common law."
TAC

<][

66.
At the outset, Defendants are correct that the Court

"need not consider the allegations .

[that] do not refer to

any named Defendants in this action." Def.'s Mot. at 9 n.4.

18

Defendants argue in their motion that qualified
immunity protects the police officer Defendants in this case
because "a reasonable officer in Defendants' position would not
believe that any of the conduct at issue in this case was a
clear violation of Plaintiff's rights," Defs.' Mot. at 21, and
"[q]ualified immunity shields officers from liability unless a
'firmly settled state of the law, established by a forceful body
of persuasive precedent, would place a reasonable official on
notice that his actions obviously violated a clearly established
constitutional right.'" Defs.' Mot. at 20 (quoting Spady v.
Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015)).
Because the Court ultimately concludes that all of Plaintiff's
claims against all Defendants must be dismissed on various other
grounds, it need not decide whether any individual Defendant
here might be shielded by qualified immunity.
26

Further, Defendants are correct that the portions of Plaintiff's
third amended complaint appearing to allege due process claims
against the City "need not be considered because Plaintiff has
failed to state a Monell claim." Id.
As to Plaintiff's claims regarding named individual
Defendants, Defendants argue that "Plaintiff has not created a
genuine issue of material fact as to any Defendant's liability
for due process violations" because "[c]laims for these alleged
violations sound in the Fourth, rather than Fourteenth,
Amendment." Defs.' Mot. at 9-10. Defendants point out that
"[t]he conduct alleged in each of these [claims] involves a
'seizure' of Plaintiff's person, which directly implicates the
Fourth Amendment." Id. at 10. Defendants also argue that
Plaintiff's allegation regarding Lieutenant Cassidy's suspension
of a search for a firearm belonging to two teenagers who had
allegedly threatened Plaintiff, see TAC at

~

64, is not a

cognizable due process claim. Id. at 10-11.
Plaintiff does not directly address Defendants' Fourth
Amendment argument in his response. Instead, he merely
reiterates his claim that "[t]he injury, arrest, and frivolous
subjection to Court process all of which were known by the
officer to be wrongful

(as evidenced by his failure to

prosecute) violate [Plaintiff's] Due Process Rights." Pl.'s
Resp. at 10.
27

The Court agrees with Defendants that Plaintiff's
claims, though couched in terms of due process, are actually
challenges to various incidents involving alleged Fourth
Amendment violations. See, e.g., TAC

at~

59 (describing "arrest

[that] lacked merit as evidenced by the election not to
prosecute and subsequent dismissal");

~

62

(describing incident

in which Plaintiff "was placed in a police vehicle (handcuffed)
and .

. had a gun pointed at him");

~

65

(describing incident

in which Plaintiff "was wrongfully detained and subsequently
injured after having been tricked into exiting his vehicle").
Regarding Lieutenant Cassidy's alleged suspension of Plaintiff's
requested search, Plaintiff does not provide and the Court has
not identified any legal basis for imposing due process
liability for failure to investigate a complaint filed with the
police. 19

19

Courts within the Third Circuit have held that a
plaintiff may establish a due process violation for failure to
investigate by showing that the defendant "'acted intentionally
or recklessly' in a manner that shocks the conscience." Briscoe
v. Jackson, 2 F. Supp. 3d 635, 644 (E.D. Pa. 2014) (quoting
Martin v. Anderson, No. 07-2965, 2008 WL 4761734, at *9 n.8
(E.D. Pa. Oct. 29, 2008)). These cases typically pertain to
plaintiffs' claims that the police failed to adequately
investigate claims against the plaintiffs themselves (on the
basis that adequate investigation may, for example, have
uncovered exculpatory evidence). See, e.g., Retzler v. Marrone,
No. 08-5191, 2009 WL 2412690, at *4 & n.2 (E.D. Pa. Aug. 5,
2009) (addressing plaintiff's argument that a police officer
"failed to conduct a proper investigation into the charges
against him" and citing Martin, 2008 WL 4761734, for the rule
that "[a] failure to investigate may support a due process claim
28

"Where a particular Amendment 'provides an explicit
textual source of constitutional protection' against a
particular sort of government behavior,

'that Amendment, not the

more generalized notion of "substantive due process," must be
the guide for analyzing' such a claim."
U.S. 266, 266 (1994)

Albright v. Oliver, 510

(quoting Graham v. Connor, 490 U.S. 386,

395 (1989)). Because Plaintiff's "due process" claims are
actually Fourth Amendment claims but have never been properly
raised as such, the Court will grant Defendants' motion for
summary judgment on all of these claims.

D.

Retaliation Claims 20
Defendants next argue that the Court should dismiss

Plaintiff's retaliation claims "because Plaintiff has not
if the plaintiff can show the defendant acted intentionally or
recklessly, thereby shocking the conscience"). Even if the Court
were to apply this rule to Plaintiff's case here, however--where
Plaintiff alleges that the police failed to investigate a
complaint that Plaintiff filed with the Internal Affairs
Division against third parties--Plaintiff's claim would still
fail because he has alleged no facts suggesting that Lieutenant
Cassidy's alleged suspension of the search was done
"intentionally or recklessly in a manner that shocks the
conscience."
20

Though Count VI brings claims for "Harassment and
Retaliation," Pennsylvania law does not provide a cause of
action for harassment. See Avery v. Mitchell, No. 98-2487, 1999
WL 240339, at *10 (E.D. Pa. Apr. 20, 1999) ("The tort of
harassment is not recognized by Pennsylvania courts because an
action for invasion of privacy is ordinarily an adequate remedy
for highly offensive conduct which unreasonably interferes with
another's right to be left alone." (internal quotation marks
omitted)).
29

created a genuine issue of material fact as to whether he was
unlawfully retaliated against by any Defendant." Defs.' Mot. at
11. During his depositions, the only individuals to whom
Plaintiff attributed retaliatory conduct were Officers Lynch and
Rosado. See Fullman 2008 Dep. at 38:12-24; Fullman 2011 Dep. at
24:10-21. Officer Rosado is no longer part of this case, and
Defendants argue that "Plaintiff does not allege or present
evidence that [Officer] Lynch was aware of [Plaintiff's] prior
complaints, let alone that Lynch's actions were motivated by any
such complaints." Defs.' Mot. at 12.
To prevail on a retaliation claim, a plaintiff
generally must prove that (1) he engaged in constitutionallyprotected activity;

(2) the government responded with

retaliation; and (3) the protected activity caused the
retaliation. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282
(3d Cir. 2004).
Here, Defendants argue not only that Plaintiff has
presented no evidence that Officer Lynch arrested him on the
basis of his prior complaints to the Internal Affairs Division,
but also that Officer Lynch had probable cause to arrest
Plaintiff because he was parked in the fire lane and then swore
at Officer Lynch. See id. at 11-12. Indeed, Plaintiff admits
that Officer Lynch arrested him for disorderly conduct and gave
him a ticket for parking in the fire lane--both of which are
30

violations of law. Fullman 2008 Dep. Tr. at 11:1. Plaintiff also
admits that he began arguing with Officer Lynch when he felt
that Officer Lynch was not properly addressing other illegally
parked vehicles, id. at 13:6-9, and he admits to walking away
from Officer Lynch and then sitting in his car, which remained
illegally parked in the fire lane, id. at 14:1-15:10.
In addition, Defendants argue that Plaintiff has not
pointed to any evidence supporting his conclusory pleading that
Officer Lynch's actions were a response to Plaintiff's history
of filing Internal Affairs complaints against various
Philadelphia police officers. See Defs.' Mot. at 11. When asked
to explain what he believed motivated Officer Lynch's actions
during the incident in question, Plaintiff simply stated that
his handicapped tags were visible, Fullman 2008 Dep. at 38:1220, and that he believed his status as an African American
driving a Buick with tinted windows motivated the officer's
actions, id. at 38:20-24. This evidence does not support a
causal link between Officer Lynch's actions and Plaintiff's
history of filing Internal Affairs complaints against other
officers in the Philadelphia Police Department.
For these reasons, the Court will grant Defendants'
motion for summary judgment on Plaintiff's retaliation claims.

31

E.

Equal Protection Claim
Defendants next argue that Plaintiff's equal

protection claim fails "for lack of evidence with respect to all
Defendants." Defs.' Mot. at 13. The Court agrees.
The Equal Protection Clause of the Fourteenth
Amendment provides that no state shall "deny to any person
within its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV. This Amendment requires state actors to treat
all "similarly situated" persons alike. See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
In support of his equal protection claim, Plaintiff
alleges that he "[e]ssentially .

. is not guaranteed the right

to stand on a sidewalk peaceably," TAC
"[e]ssentially .

~

70,

is not provided [the] right to report

police misconduct as he sees fit," id.

~

71, and "[e]ssentially

. is not afforded the right under the law to operate a
vehicle peaceably," id.

~

72. His equal protection allegations

also include the following:
[He] was chased out of Philadelphia and into Yeadon,
he was falsely arrested, he was placed in imminent
fear of lethal harm when firearms were pointed at his
head on more than one occasion, he was emotionally
distressed, he was denied medical treatment, he was
discriminated against, he was prevented from parking
in a handicapped space, he was issued false citations
causing his license to be suspended, he was issued
false citations and subject to arrest for false claims
of illegal window tinting, he was prevented from using

32

handicapped parking spaces,
[and] he was
about the existence of a known disability.

questioned

Id. 'JI 73.
From these allegations, it is difficult to discern the
theory of Plaintiff's equal protection claim. One possible
theory might be selective prosecution, which is a form of
discriminatory law enforcement that has been held to violate the
Equal Protection Clause of the Fourteenth Amendment since Yick
Wo v. Hopkins, 118 U.S. 356 (1886). In Yick Wo, officials were
held liable for "illegal discrimination" when they "applied and
administered" a facially neutral law "with an evil eye and an
unequal hand." Id. at 373-74. To make out this type of equal
protection claim, a plaintiff must prove that

(1) that persons

similarly situated were not prosecuted, and (2) the decision to
prosecute was made on the basis of an unjustifiable standard,
such as race, religion, or "some other arbitrary factor." United
States v. Schoolcraft, 879 F.2d 64, 68

(3d Cir. 1989)

(per

curiam). More specifically, in the racial profiling or
disability discrimination context, a plaintiff is required to
prove that the actions of officials "(l) had a discriminatory
effect, and (2) were motivated by a discriminatory purpose."
Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002).
As Defendants argue in their motion, Plaintiff
provides no evidence that any individual Defendant's conduct was

33

motivated by Plaintiff's race or disability or any other
"arbitrary factor." Schoolcraft, 879 F.2d at 68. Though
Plaintiff is African American and thus a member of a protected
class, he has failed to allege that any similarly situated
person has been treated differently than he has; Plaintiff
claims only that "[f]ailing to act in a meaningful manner on
[Plaintiff]'s [complaints] denies him equal protection under the
law when (it is presumed)

[the police] would act on the

complaints of other persons." TAC

~

69 (emphasis added). To

successfully make out an equal protection claim, Plaintiff would
need to show, for example, that other individuals with the same
percentage of car-window tinting were not stopped and issued
citations, or that other individuals who argued with and swore
at police officers were not arrested. Mere speculation that
other complaints might be handled differently does not
constitute evidence.
Although Plaintiff cites his handicapped tags and type
of vehicle as the motivating forces behind his traffic stops, he
admits that he has tinted windows and acknowledges that the
officers cited the tinting as the reason for the stop. Fullman
2011 Dep. at 31:21-32:3. The Court agrees with Defendants that,
without any supporting evidence, "Plaintiff's personal belief
that black males are typically associated with Buick LeSabres
does not create an issue of material fact as to whether these
34

Defendants pulled him over for a discriminatory purpose." Defs.'
Mot. at 14.
Because Plaintiff has failed to provide any evidence
showing that Defendants' actions had a discriminatory effect or
were motivated by a discriminatory purpose, the Court will grant
Defendants' motion for summary judgment on Plaintiff's equal
protection claims against all Defendants.

F.

ADA Claims
Defendants next argue that Plaintiff's ADA claims must

fail because "Plaintiff has neither alleged, nor proffered
evidence, that he was wrongly arrested because of his disability
or that he was harmed by any failure to accommodate his
disability." Defs.' Mot. at 15. Again, the Court agrees.
Defendants concede that municipalities may be held
liable for violations of the ADA during arrests,

21

21

and further

The Court notes briefly its disagreement with
Defendants' contention that "[a]s an initial matter, the ADA
does not give rise to individual liability." Defs.' Mot. at 15
(citing Morais v. City of Philadelphia, No. 06-582, 2007 WL
853811, at *11 (E.D. Pa. Mar. 19, 2007)). Though this might
fairly characterize the consensus view of courts within this
Circuit, see Mcinerney v. Moyer Lumber & Hardware, Inc., 244 F.
Supp. 2d 393, 398 (E.D. Pa. 2002) (collecting cases showing that
"a growing number of district courts in this Circuit have
concluded that there is no individual liability under the ADA"),
the Supreme Court has not definitively decided this issue, and
the Third Circuit has noted only in dicta that "there appears to
be no individual liability for damages under Title I of the
ADA." Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002).
Regardless of whether the ADA provides for individual liability,
35

that there are two theories of liability for such claims. 22 See
Defs.' Mot. at 15. The "wrongful arrest" theory applies when
police arrest an individual with a disability because the police
misperceived the effects of his or her disability as criminal
activity. See Morais v. City of Phila., No. 06-582, 2007 WL
853811, at *11 (E.D. Pa. Mar. 19, 2007). To prevail on such a
claim, a plaintiff must show that (1) he was disabled;

(2) the

arresting officer knew or should have known of his disability;
and (3) the officers arrested him because they mistakenly
confused his disability with illegal conduct. See id. The second
possible theory of liability under the ADA is the "reasonable
accommodation" theory, which applies when the police properly
investigate and arrest a person with a disability for a crime
unrelated to his disability, but then fail to reasonably
accommodate the person's disability in the course of the
investigation or arrest, thereby "causing the person to suffer
greater injury or indignity in that process than other

however, Plaintiff's claims here fail because he has not alleged
that he was falsely arrested because of his disability or harmed
by any failure to accommodate his disability.
22

Courts within the Third Circuit have explained that
"[t]hose Circuit courts that have addressed the question [of]
the applicability of the ADA to arrests have identified two
theoretical bases for these claims." Morais, 2007 WL 853811, at
*11 (citing Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir.
1999)) .
36

arrestees." See id.

(quoting Gohier v. Enright, 186 F.3d 1216,

1220 (10th Cir. 1999)).
Here, Plaintiff's attempt to state a claim fails under
either theory because he has not alleged nor produced evidence
that he was arrested by an officer who mistakenly believed that
symptoms of his disability were illegal activity, nor does he
allege or produce any evidence that he requested any
accommodation for his disability that was not provided during
any of his interactions with the police. 23 For these reasons, the
Court will grant Defendants' motion for summary judgment on
Plaintiff's ADA claims.

G.

Statute of Limitations
Defendants contend that Plaintiff's claims against

Officer Dickerson, Lieutenant Cassidy, and Officer Krzywicki,
all of which stem from his April 3, 2008, arrest, are barred by
the statute of limitations. Defs.' Mot. at 16-17.
"Because there is no federal statute of limitations
with respect to civil rights actions arising under section 1983,
the relevant state's statute of limitations for analogous
23

Although Plaintiff complained during one of his
depositions that he was mocked by an unnamed police officer for
his diabetes during the course of his June 13, 2006, arrest, see
Fullman 2008 Dep. Tr. at 19:16-20:2, that officer is not a named
Defendant in this case. Moreover, an unsupported allegation that
an unnamed officer mocked him for his disability does not by
itself make out a claim under either the wrongful arrest or
reasonable accommodation theories of liability under the ADA.
37

actions applies." Johnson v. Whitaker, No. 14-1780, 2014 WL
6825543, at *2

(E.D. Pa. Dec. 4, 2014)

(citing Dique v. New

Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010)). In
Pennsylvania, that period is two years. See id. Because a claim
generally accrues "when the plaintiff discovers, or with due
diligence should have discovered, the injury that forms the
basis for the claim," Romero v. Allstate Corp., 404 F.3d 212,
222 (3d Cir. 2005), courts have held, in the context of a

§

1983

claim arising from an arrest, that a plaintiff typically has
reason to know of the injury on the date of the arrest. See,
e.g., Jackson v. Nicoletti, 875 F. Supp. 1107, 1109 (E.D. Pa.
1994); Pendergrass v. Gray, No. 06-2247, 2006 WL 3165007, at *2
(E.D. Pa. Oct. 30, 2006).
Here, Plaintiff did not bring any claims against
Officer Dickerson, Lieutenant Cassidy, or Officer Krzywicki
until he hand-delivered his first amended complaint to
Defendants' counsel at his deposition on June 22, 2011, see
Fullman 2011 Dep. Tr. 50:6-16, which was more than three years
after the April 3, 2008, incident in question. Plaintiff then
waited until August 25, 2011, to file his first amended
complaint with the Court. See ECF No. 31.
In his response to Defendants' motion, Plaintiff
argues that Defendants were on notice of Plaintiff's claims
stemming from the April 3, 2008, incident as soon as Plaintiff
38

filed a complaint with the Internal Affairs Division on April 3,
2008. 24 Pl.'s Resp. at 12.

Plaintiff, however, does not point to

authority suggesting that filing a complaint with Internal
Affairs excuses a plaintiff from filing a lawsuit within the
limitations period. 25 Plaintiff also asks this Court to allow his
claims to "relate back to the filing on April 10, 2010 Federal
Court Complaint,"

26

id., which the Court construes to mean

Plaintiff's original complaint in Civil Action No. 10-1536,
filed on April 5, 2010. See ECF No. 73. Even April 5, 2010,
however, is more than two years after April 3, 2008, and thus
Plaintiff's claims are barred by the statute of limitations even

24

Plaintiff's response uses both April 3, 2008, and
April 8, 2008, as the date of the incident involving Officer
Dickerson, Lieutenant Cassidy, or Officer Krzywicki. Compare
Pl.'s Resp. at 6 with Pl.'s Resp. at 11. Because Plaintiff's
Internal Affairs complaint reporting this incident states that
it occurred on April 3, 2008--and, moreover, because this
Internal Affairs complaint itself is dated April 3, 2008--the
Court finds that the incident occurred on April 3, 2008, and
calculates the statute of limitations accordingly. See Pl.'s
Resp Ex. 7, ECF No. 81-9.
25

Federal Rule of Civil Procedure 3 states clearly that
"[a] civil action is commenced by filing a complaint with the
court."
26

Federal Rule of Civil Procedure 15(c) (1) (B) provides
that "[a]n amendment to a pleading relates back to the date of
the original pleading when:
. the amendment asserts a claim
or defense that arose out of the conduct, transaction, or
occurrence set out--or attempted to be set out--in the original
pleading .
"
39

if the Court uses the earliest possible filing date in this case
as the operative date for calculating the limitations period. 27
Because Plaintiff's claims against Officer Dickerson,
Lieutenant Cassidy, and Officer Krzywicki fall outside of the
statute of limitations, the Court will grant Defendants' motion
for summary judgment on these claims.

H.

Excessive Force Claims
Finally, Defendants argue that Plaintiff's excessive

force claims fail because "Plaintiff has offered insufficient
evidence to proceed on his excessive force claims against
Officers Mitchell or Lynch." Defs.' Mot. at 18.
A police officer is privileged to commit a battery
pursuant to a lawful arrest, but the privilege is negated by use
of excessive force. Edwards v. City of Phila., 860 F.2d 568, 572
(3d Cir. 1988). A cause of action for excessive force exists
under § 1983 when a law enforcement officer uses force so
excessive that it violates the Fourth and Fourteenth Amendments
to the United States Constitution. Brown v. Borough of
Chambersburg, 903 F.2d 274, 277

(3d Cir. 1990); see also Graham

27

Although Plaintiff filed his original complaints in
Civil Action Nos. 08-2781 and 09-3559 on June 20, 2008 and
November 30, 2009, respectively, see Dkt. No. 08-2781, ECF No.
3; Dkt. No. 09-3559, ECF No. 5, neither of these complaints
brings claims against Officer Dickerson, Lieutenant Cassidy, or
Officer Krzywicki stemming from Plaintiff's April 3, 2008,
arrest.
40

v. Connor, 490 U.S. 386, 394-95 (1989)

(holding that an

excessive force claim under § 1983 arising out of law
enforcement conduct is based on the Fourth Amendment's
protection from unreasonable seizures of the person) .
The force that a police officer uses to effectuate an
arrest must be reasonable. Graham,

490 U.S. at 396. The

reasonableness of an officer's use of force is measured by
"careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Id. The
reasonableness inquiry is objective but should give appropriate
scope to the circumstances of the police action, which are often
"tense, uncertain, and rapidly evolving." Id. at 397.
For excessive force claims, summary judgment is
appropriate if, as a matter of law, the evidence would not
support a reasonable jury finding that the police officers'
actions were objectively unreasonable. Groman v. Twp. of
Manalapan,

47 F.3d 628,

633-34

(3d Cir. 1995).

Plaintiff alleges that Officer Mitchell attempted to
pull over Plaintiff's car by activating the lights and sirens of
his patrol car, Fullman 2011 Dep. at 16:6-9, and he admits that
he did not stop and instead led Officer Mitchell on a chase
41

beyond:city limits and into Yeadon, id. at 16:10-23. After the
chase ended, Officer Mitchell approached Plaintiff's car with
his gun pointed toward the front of the car. Id. at 17:5-12.
Plaintiff then exited his vehicle voluntarily. Id. at 19:6-8. He
does not allege that Officer Mitchell continued to point the gun
at him after he exited the car, nor does he allege that he was
punched, struck, or otherwise thrown to the ground by Officer
Mitchell. See id. at 18:23-19:5. Instead, Plaintiff alleges only
that he was handcuffed, briefly held in a patrol car, and
ultimately released with traffic citations for failure to stop
and reckless driving. Id. at 21:6-13.
Further, Plaintiff alleges that Officer Lynch pulled
him out of his car while he was parked in the fire lane, twisted
his thumb to get him into handcuffs, and kicked his legs open to
frisk him. Fullman 2008 Dep. at 17:4-15, 24:2-4. Plaintiff
claims that he "sought immediate medical treatment for a
sprained thumb evidencing the existence of an injury." Pl.'s
Resp. at 9.
Defendants argue that, even accepting all of
Plaintiff's allegations as true, all of the force used by both
Officers Mitchell and Lynch was directly related to the
effectuation of Plaintiff's arrests during these respective
incidents. Defs.' Mot. at 19-20. Defendants contend that
"Officer Mitchell did not use excessive force but rather used
42

the necessary precautions to effectuate the stop and detention
of a person who refused to submit to a traffic stop and took a
police officer on a chase into another county," id. at 20, and
similarly that "all of the force utilized by [Officer] Lynch was
directly related to Lynch's attempt to effectuate Plaintiff's
lawful arrest during an incident in which Plaintiff admits to
illegally parking in a fire lane and swearing at the officer,"
id.
Plaintiff responds that "[t]he unholstering of deadly
weapons during the conversation .

. was objectively

unreasonable" because "the circumstances of his apprehension
fell outside of the scope of when deadly force is permitted."
Pl.'s Resp. at 10. Indeed, Plaintiff's third amended complaint
mentions either the threat or use of "deadly force" at least
three separate times in his claims alleging excessive use of
force. See

TAC~~

46, 47. Plaintiff points to no law, however,

supporting his implied assertion that wielding a gun constitutes
"deadly use of force" or even the threat thereof.
Because Plaintiff has failed to adduce any evidence
supporting his claims that the force Officers Mitchell and Lynch
used against him was excessive, the Court will grant summary
judgment on these claims.

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II.

CONCLUSION
In summary, Plaintiff has not shown that there is a

genuine dispute as to any material fact that would bear upon the
resolution of any of his six claims against the remaining
Defendants in this case. The case is now over six years old, and
Plaintiff, who has had counsel since 2013, has had two separate
opportunities to file amended complaints. Because all Defendants
are entitled to judgment as a matter of law on all six of
Plaintiff's claims, the Court will grant Defendants' motion for
summary judgment in full.
An appropriate order follows, and judgment shall be
entered in favor of Defendants.

44