GORMAN v. WARWICK TOWNSHIP et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 4/23/12. 4/26/12 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHEALE A. GORMAN
: CIVIL ACTION
: NO. 10-CV-6760
OFFICER EDWARD LOUX,
CORPORAL AARON M. RICHWINE
and OFFICER BARRY J. SZAMBOTI :
MEMORANDUM AND ORDER
April 23, 2012
This civil rights action is once again before the Court for
adjudication of the Defendants’ Motion for Summary Judgment.
the reasons outlined in the paragraphs which follow, the Motion
shall be GRANTED.
History of the Case1
This case has its origins in a vehicle stop which occurred
at approximately 9:30 p.m. on November 19, 2008 in the 1600 block
of Meetinghouse Road in Warwick Township, Bucks County,
Immediately prior to that time, Bucks County
Police Radio (“BCR”) had received a call from an area motorist
that there was a light-colored station wagon crossing over the
double yellow line and driving on the wrong side of the road on
nearby Bristol Road.
In addition to providing this information,
Nearly all of the facts recited herein have been gleaned from the
video record of Plaintiff’s traffic stop captured by the on-board cameras in
Warwick Cars 6 and 11 and from the audio-taped recordings from Cpl. Richwine’s
the motorist also supplied BCR with the license plate number of
the car, which he had followed from Bristol Road to Eddowes Road.
Corporal Aaron Richwine of the Warwick Township Police
Department was on patrol in the area when he received the BCR
A few minutes later, he saw a light colored wagon
pulling out of an industrial complex on Eddowes Road.
that the license tag matched that given by the motorist, Cpl.
Richwine followed the vehicle and, and after observing it first
using the center portion of the roadway and then driving on the
left side of the road, he activated the lights on his police
vehicle and pulled it over.
(Affidavit of Probable Cause, p. 4,
annexed as Exhibit “M” to Plaintiff’s Memorandum of Law in
Opposition to Motion for Summary Judgment; Deposition of Cpl.
Aaron Richwine, dated 10/6/11, at pp. 15-16).
Cpl. Richwine approached the driver’s side of the stopped
car and found it to contain a single occupant – the driver,
Plaintiff, Micheale Gorman.
Richwine informed Ms. Gorman that
the stop was being audio and video recorded and asked whether she
Plaintiff responded that she was driving the way that
she was because she had just hit a deer the preceding week and
totaled her car.
In response to Cpl. Richwine’s question as to
how many alcoholic drinks she had, Plaintiff replied that she had
“probably, not even one.”
After checking her license and
registration, Richwine then asked Plaintiff to submit to a
preliminary breath test (“PBT”) as he wanted to be sure that she
was safe to continue driving.2
Plaintiff refused to take the PBT
ostensibly because she had been told that they aren’t accurate
and said that since her house was just up the road, she would
just walk home.
Cpl. Richwine told Plaintiff that she was not
free to leave and that if she wouldn’t take the PBT, she would
have to perform field sobriety tests.
Cpl. Richwine then demonstrated the three sobriety tests
which he wanted Plaintiff to perform: the closed eyes balance,
one-leg stand and the heel to toe walking tests.
While she was
able to perform the one-leg standing test, she swayed while
performing the closed eyes balance test and stumbled when she
started the heel to toe test and ended up walking normally (not
heel-to-toe) for most of it.
Cpl. Richwine gave Plaintiff
another opportunity to take the PBT, advising her that he would
be placing her under arrest for Driving Under the Influence
(“DUI”) but that if the PBT came back with a .08 reading or
lower, he would not arrest her.
The other officers also told
Plaintiff that the PBT could only help her, it could not hurt her
given that it was only preliminary, it was not admissible in
court and they could not testify to its results.
refused and Cpl. Richwine advised her that he was placing her
By this time, two other police cruisers containing Officer Hueber
and Officers Loux and Szamboti had arrived at the scene.
It was at this point that Plaintiff became what can only be
described as uncooperative.
She stiffened her arms in front of
her body, refusing to put them behind her back.
After asking the
other officers if anyone had a taser, Cpl. Richwine told
Plaintiff to put her hands behind her back or she would be tased.
Officer Loux removed his taser from his holster and demonstrably
Although Ms. Gorman said that she wasn’t afraid of
being tased, she did comply and was handcuffed behind her back.
Because all of the officers at the scene were men, Cpl. Richwine
asked whether there were any female officers on duty that night.
One of the other officers told him that Warminster Township
Officer Renee Fox was working and Richwine instructed that she be
called to conduct a search of the plaintiff’s person.
point, Richwine told Plaintiff that he would be walking her back
to Officer Loux and Officer Szamboti’s vehicle while they waited
for Officer Fox to arrive.
Plaintiff became argumentative,
telling Cpl. Richwine to let go of her arm, “he was bruising”
When one of the other officers told her that they couldn’t
let go of her because she was handcuffed, Ms. Gorman responded
that she “didn’t care,” that she was not “gonna relax...this is
why you people have a bad reputation,” that “this is a false
arrest,” and asking the police if they “want to have some charges
pressed against you?”
Subsequently, when the officers asked her to sit in the back
of the police vehicle, Plaintiff refused.3
Cpl. Richwine told
her “Ma’am, you’re going to get tasered if you don’t get in the
Plaintiff responded “go ahead and taser me.”
again told Plaintiff to get in the car and Plaintiff again said
After the third entreaty to get in the car, Richwine
told her that she did not want to get tasered to which Plaintiff
responded that she had been tasered before and it didn’t bother
Although the following events are not seen on the video,
they are recorded on the audio and attested to in the depositions
of the parties.
Cpl. Richwine reached for his taser, but before
he could use it, Officer Loux stepped forward and delivered a
“drive stun” which lasted approximately 4 seconds to the rear
portion of Plaintiff’s left thigh.4 (Gorman Dep., 68-69; Richwine
Dep., 51-59; Loux Dep., 16-21).
Plaintiff immediately became
compliant and stepped into the back seat of the police car.
(Richwine Dep., 63-65; Loux Dep., 21-22).5
A few minutes later,
By Plaintiff’s own admission, she remembers “... being very upset
and very argumentative ...” and “... I mean, I was not getting into the car.
So if you consider not doing what they asked me to do as resistance, then I
have to go with yes on that one.” (Dep. of Micheale Gorman 10/6/11, p. 64,
Plaintiff disputes that she was tasered in the thigh. Rather, she
asserts that Officer Loux tasered her first in the right rear pelvic region
and then again a few seconds later about “an inch or inch and a half lower”
“in the same general region.” (Gorman Dep., p.72)
Plaintiff also alleges that she was tasered three times by Officer
Loux and that after the second tase, she went down to her knee and was helped
back up from the rear. At that point, Plaintiff avers that she “turned around
again, and said something like, ‘stop,’ or ‘let me go’ or something like that,
Officer Fox arrived and performed a pat-down search of Plaintiff,
following which Plaintiff was transported to the Doylestown
Hospital, where she was examined and blood was drawn for testing.
Ms. Gorman was released from police custody at the hospital.
(Richwine Dep., 72-73, Affidavit of Renee Fox, attached to
Defendants’ Memorandum of Law in Support of Motion for Summary
Judgment as Exhibit “H”; Exhibit “I”).
pled guilty to driving under the influence of alcohol as a result
of this incident.
On November 18, 2010, Plaintiff brought this suit against
Warwick Township, Corporal Richwine, Officer Loux and Officer
Szamboti in both their official and individual capacities
alleging violations of her constitutional rights under the Fourth
and Fourteenth Amendments and for the common law torts of
intentional infliction of emotional distress, assault and battery
After partially granting the defendants’
motion to dismiss, Plaintiff filed a Second Amended Complaint
against Warwick Township, Richwine and Loux seeking redress under
the Fourth Amendment for excessive force, and for assault and
battery, intentional infliction of emotional distress and
Discovery in this matter has since closed and
Defendants filed this motion for summary judgment on December 7,
and then” she was “tased a third time.” (Gorman Dep., 74). This time, she
was tased towards her waist line, but not above it. (Gorman Dep., 75).
Standards Governing Rule 56 Summary Judgment Motions
The principles and procedures for resolving motions for
summary judgment are outlined in Fed. R. Civ. P. 56, which
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law. The
court should state on the record the reasons for granting or
denying the motion.
Fed. R. Civ. P. 56(a).
In considering a summary judgment motion, the court must view
the facts in the light most favorable to the non-moving party and
all reasonable inferences from the facts must be drawn in favor
of that party as well.
Sovereign Bank v. BJ’s Wholesale Club,
Inc., 533 F.3d 162, 171 (3d Cir. 2008); Troy Chemical Corp. v.
Teamsters Union Local No. 408, 37 F.3d 123, 126 (3d Cir. 1994);
Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.
1989); U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa.
It should be noted that an issue is genuine only if there
is a sufficient evidentiary basis on which a reasonable jury
could find for the non-moving party, and a factual dispute is
material only if it might affect the outcome of the suit under
Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d
Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
Further, “[t]he mere existence of some evidence in support
of the nonmovant is insufficient to deny a motion for summary
judgment; enough evidence must exist to enable a jury to
reasonably find for the nonmovant on the issue.”
Williams, 622 F.3d 315, 324 (3d Cir. 2010)(quoting Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009)).
And, if the non-
moving party bears the burden of persuasion at trial, “the moving
party may meet its burden on summary judgment by showing that the
nonmoving party’s evidence is insufficient to carry that burden.”
Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir.
Further, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007).6
Defendant’s Entitlement to Summary Judgment on
In Scott, the plaintiff was rendered a quadriplegic after the
defendant, a Georgia county deputy, bumped his car off the road following a
10-mile-long high speed chase. In addressing the plaintiff-respondent’s
Fourth Amendment excessive force claim, the Supreme Court’s factual findings
were informed by the videotaped recording of the events from the on-board
video camera in Petitioner’s police vehicle. Reversing the Eleventh Circuit’s
affirmance of the District Court’s denial of the petitioner-deputy’s motion
for summary judgment, the Supreme Court opined that because the videotape
“quite clearly contradicts the version of the story told by respondent,” the
Court of Appeals erred in relying on and adopting the respondent-plaintiff’s
“visibl[y] fictional” version of the facts. Instead, the Court of Appeals
“should have viewed the facts in the light depicted by the videotape.” Scott,
Plaintiff’s Excessive Force Claim - Count I
By this motion, Defendants first move for the entry of
judgment in their favor as a matter of law on Count I of the
Plaintiff’s Second Amended Complaint which seeks damages from
Corporal Richwine and Officer Loux for the use of excessive force
in the course of her November 19, 2008 arrest.
As we previously discussed in our Memorandum and Order of
March 31, 2011 partially granting Defendants’ Motion to Dismiss,
“[w]here ... [an] excessive force claim arises in the context of
an arrest or investigatory stop of a free citizen, it is most
properly characterized as one invoking the protections of the
Fourth Amendment, which guarantees citizens the right ‘to be
secure in their persons ... against unreasonable ... seizures’ of
Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct.
1865, 1871, 104 L. Ed. 2d 443 (1989).
Thus, “[t]o state a claim
for excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a ‘seizure’ occurred and
that it was unreasonable.”
Estate of Smith v. Marasco, 430 F.3d
140, 148 (3d Cir. 2005)(quoting Abraham v. Raso, 183 F.3d 279,
288 (3d Cir. 1999)).
It is of course axiomatic that “an officer
seizes a person whenever he ‘restrains the freedom of a person to
walk away.’” Curley v. Klem, 499 F. 3d 199, 203, n.4 (3d Cir.
2007)(quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct.
1694, 85 L. Ed. 2d 1 (1985)).
In analyzing such claims, courts must be mindful that
“Fourth Amendment jurisprudence has long recognized that the
right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or
threat thereof to effect it,” though “the test of reasonableness
... is not capable of precise definition or mechanical
Graham, 490 U.S. at 396, 109 S. Ct. at 1872
(citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S. Ct. 1868, 18801883, 20 L. Ed. 2d 889 (1968) and quoting Bell v. Wolfish, 441
U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979)).
Rather, the “Fourth Amendment inquiry is one of ‘objective
reasonableness’ under the circumstances, and subjective concepts
like ‘malice’ and ‘sadism’ have no proper place in that inquiry.”
Graham, 490 U.S. at 399, 109 S. Ct. at 1873.
Indeed, if a use of
force is objectively reasonable, an officer’s good faith is
irrelevant and any bad faith motivation on his part is
Kopec v. Tate, 361 F. 3d 772, 776 (3d Cir. 2004).
Furthermore, “[d]etermining whether the force used to effect
a particular seizure is ‘reasonable’ under the Fourth Amendment
requires a careful balancing of ‘the nature and quality of the
intrusion on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Graham, 490
U.S. at 396, 109 S. Ct. at 1871 (quoting Garner, 471 U.S. at 8,
105 S. Ct. at 1699)).
Factors to be considered include the
severity of the crime at issue, whether the suspect posed an
immediate threat to public safety, and whether the suspect was
actively resisting or evading arrest.
Woods v. Grant, No. 09-
4360, 381 Fed. Appx. 144, 146, 2010 U.S. App. LEXIS 10448 (3d
Cir. May 21, 2010)(citing Graham, 490 U.S. at 396; Carswell v.
Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004)).
relevant factors include the possibility that the persons subject
to the police action are themselves violent or dangerous, the
duration of the action, the possibility that the suspect may be
armed, whether the action takes place in the context of effecting
an arrest, and the number of persons with whom the police
officers must contend at one time.
Ansell v. Ross Township, No.
10-1402, 419 Fed. Appx. 209, 213, 2011 U.S. App. LEXIS 6202 (3d
Cir. March 25, 2011); Sharrar v. Felsing, 128 F.3d 810, 822 (3d
Through it all, “the calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments in circumstances that are
often tense, uncertain, and rapidly evolving, about the amount of
force that is necessary in a particular situation.”
Honey Brook Township, No. 05-4534, 211 Fed. Appx. 118, 124, 2007
U.S. App. LEXIS 218 (3d Cir. Jan. 5, 2007)(quoting Graham, 490
U.S. at 396-397)).
“Significantly, the Supreme Court has
cautioned that in applying the objective reasonableness test,
‘not every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers,’ is constitutionally
Sharrar, 128 F.3d at 821 (quoting Graham, 490
U.S. at 396, 109 S. Ct. at 1872).
In applying these precepts to the circumstances surrounding
the arrest of the plaintiff in the instant case and weighing both
the Graham and the Sharrar factors7, we find that the defendant
officers’ use of force here was objectively reasonable.
the record demonstrates that although the plaintiff was initially
compliant with Cpl. Richwine’s verbal directives to step out of
the car and perform field sobriety tests, she became increasingly
oppositional after she was told that she was being placed under
It was only in response to Plaintiff’s stiffening of her
arms and refusing to place them behind her back, that Officer
Loux first sparked his taser.
This promptly resulted in
Plaintiff’s co-operating and being handcuffed.
however, Plaintiff’s uncooperative behavior resumed as she was
being walked back to Officer Loux and Szamboti’s police vehicle
and worsened when she was asked to step into the back of the car.
It was only after repeated entreaties and warnings by the
Although the crime at issue was not “severe” and there is no
evidence that Plaintiff was armed or dangerous or that she posed any serious
threat to the safety of the four officers who responded, by her own admission,
she was actively resisting arrest and would have evaded arrest by walking
across the road to her nearby home. The audiotaped recording also reflects
that Ms. Gorman became more and more verbally hostile and combative after she
learned that she was being placed under arrest and the officers attempted to
place her in the back of the police car. Officer Loux characterized her
behavior as “being resistive but not assaultive.” (Loux Dep., 19-20).
officers and Plaintiff’s continued verbal and physical refusals8
to comply, that Officer Loux stepped forward and delivered two
quick “drive stuns” to the back of plaintiff’s thigh.
quick stuns had the desired result and Ms. Gorman immediately
stepped into the back of the cruiser.
There is no evidence of
any additional force9 being applied to Plaintiff nor evidence of
Indeed, we find that the force that was applied in
this case was employed for the sole purpose of placing Plaintiff
into the police car10 and was, we find, the minimal amount of
force needed under the circumstances to accomplish this
So finding12, we conclude that judgment is therefore
Plaintiff wouldn’t move, “she was as stiff as can be.
herself up.” (Richwine Dep., 52).
We acknowledge that there is disagreement between Plaintiff and the
defendants as to where on her body she was tased and the precise number of
stuns administered and that as to these two issues, there is nothing other
than the audiotaped recording of the event. There is also a discrepancy
between Officer Loux’s testimony that Plaintiff further resisted at one point
by putting her foot on the rear sill of the passenger door and pushing off
against that and Plaintiff’s testimony that she fell to the ground on one
knee. (Loux Dep., 17-18; Gorman Dep., 65-67). However, even accepting Ms.
Gorman’s testimony that she was tased three times in the area of her waist,
the parties agree that the duration of the entire event was less than a minute
in length and that, aside from the momentary sensation of pain that attended
each tase, Plaintiff sustained no injury as a result. (Richwine Dep., 58-59;
Gorman Dep., 76-79; Taser usage log for Taser #X00-338929, a copy of which is
annexed to Defendants’ Motion for Summary Judgment as Exhibit “I,” at sequence
numbers 0185, 0186).
As Plaintiff herself testified,
“The longer the time went on that they were trying to get me into the
car, and I was not getting into the car, the more things got sort of
heated.” (Gorman Dep., 69).
As Cpl. Richwine testified,
“I suppose I could have shoved her head down and stuffed her in the
car...I didn’t want to hurt her.” (Richwine Dep., 51-52).
appropriately entered in favor of Defendants Loux and Richwine13
on this issue as a matter of law and the motion for summary
judgment on Count I of the Second Amended Complaint is granted.
Further, while the Warwick officers were also equipped with OC (oleoresin
capsicum) spray, in response to plaintiff’s counsel’s questioning as to why he
chose to employ the taser instead of the pepper spray, Officer Loux explained,
“the aftereffects of pepper spray are abundant. It’s a lot of
decontamination and water in the eyes. The after effects are
quite substantial as opposed to the Taser. As soon as the [taser]
unit is deactivated, the effects of it cease.”
(Loux Dep., 42-43).
We likewise find that the force employed in arresting Ms. Gorman was
in accord with Pennsylvania state law. Specifically, 18 Pa. C.S.A. §508
governing the use of force in law enforcement states the following at
(1) A peace officer, or any person whom he has summoned or directed to
assist him, need not retreat or desist from efforts to make a lawful
arrest because of resistance or threatened resistance to the arrest. He
is justified in the use of any force which he believes to be necessary
to effect the arrest and of any force which he believes to be necessary
to defend himself or another from bodily harm while making the arrest.
However, he is justified in using deadly force only when he believes
that such force is necessary to prevent death or serious bodily injury
to himself or such other persons, or when he believes both that:
(i) such force is necessary to prevent the arrest from being
defeated by resistance or escape; and
(ii) the person to be arrested has committed or attempted a
forcible felony or is attempting to escape and possesses a deadly
weapon, or otherwise indicates that he will endanger human life or
inflict serious bodily injury unless arrested without delay.
It is not clear from our reading of the Second Amended Complaint
whether Plaintiff is also pursuing a claim against Cpl. Richwine for failing
to intervene in what she contends was Officer Loux’s improper tasering.
Regardless, given our finding that the force used here was reasonable and that
Plaintiff’s constitutional rights were not violated by the use of that force,
we likewise enter judgment in favor of Cpl. Richwine as a matter of law on
this claim as well. See, Argueta v. United States Immigration & Customs
Enforcement, 643 F.3d 60, 72 (3d Cir. 2011); Adams v. Selhorst, No. 11-1927,
449 Fed. Appx. 198, 204, 2011 U.S. App. LEXIS 21688 at *14 (3d Cir. Oct. 26,
2011); Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Warwick Township’s Entitlement to Summary Judgment
In Count II of the Second Amended Complaint, Plaintiff
raises a Monell claim against the Township of Warwick alleging
that “[a]t the time of this incident, it was the policy, practice
and/or custom of Warwick and its police force to use excessive
force and intimidate citizens,” and that “the Constitutional
violations suffered by plaintiff were the result of Warwick’s
failure to properly train and supervise its officers with regard
to the proper methods for making stops without intimidating
citizens and wrongfully using excessive and unreasonable force,
(Second Amended Compl., ¶s 36, 38).
Under Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978),
municipalities cannot be held liable under §1983 under respondeat
superior or, in other words, solely because they employ a tortfeasor.
Rather, it is only “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is
responsible under §1983.”
at 2036, 2037-2038.
Id., 436 U.S. at 691, 694, 98 S. Ct.
And, while inadequacy of police training may
serve as the basis for liability under §1983, it is only when
that failure amounts to deliberate indifference to the rights of
persons with whom the police come into contact, that liability
may be imposed.
City of Canton v. Harris, 489 U.S. 378, 388, 109
S. Ct. 1197, 1204, 103 L. Ed.2d 412 (1989).
It is possible for a municipality to be held independently
liable for a substantive due process violation even in situations
where none of its employees are liable.
Bornstad v. Honey Brook
Township, No. 05-4534, 211 Fed. Appx. 118, 2007 U.S. App. Lexis
218 (3d Cir.
Jan. 5, 2007); Brown v. Commissioner, Dep’t. Of
Health Emergency Medical Services Training Institute, 318 F.3d
473, 482 (3d Cir. 2003)(citing Fagan v. City of Vineland, 22 F.3d
1283, 1292 (3d Cir. 1994)).
However, for there to be municipal
liability, there still must be a violation of the plaintiff’s
Thus, it is not enough
that a municipality adopted with deliberate indifference a policy
of inadequately training its officers – there must be a “direct
causal link” between the policy and a constitutional violation.
Id, (citing Canton, 489 U.S. at 385).
Here, there is ample evidence in the record that Warwick
Township has written policies and procedures governing the use of
force by its officers, that the officers involved in the
plaintiff’s arrest had their state-required training as well as
specific training in the use of tasers and that the township had
policies and procedures regarding the preparation of reports when
officers used force, including such weapons as tasers and o.c. or
pepper spray. (Depositions of Cpl. Richwine and Officer Loux, at
pp. 31-43, 53-55, 60, 62-63, and 19-20, 22, 24-29, 32-35, 39-44,
respectively; Defendants’ Exhibits “F,” “G,” “I,” “J,” and “K”).
Further, as discussed in detail above, the amount of force
employed by the defendant officers in effectuating the
plaintiff’s arrest was not excessive and the defendants did not
violate Plaintiff’s Fourth Amendment rights.
Thus, to the extent
that there was any deficiency in the defendants’ training and
training policies and procedures, it was not “the moving force”
behind a “constitutional violation actionable under §1983.”
McCracken v. Freed, No. 06-1510, 243 Fed. Appx. 702, 708, 2007
U.S. App. LEXIS 14646 at *13 (June 19, 2007)(citing Polk v.
Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 70 L. Ed.2d 509
We therefore shall also grant the motion for summary
judgment as to Count II of the Second Amended Complaint.
C. Plaintiff’s Common Law Claims for Assault and Battery,
Intentional Infliction of Emotional Distress and
Misrepresentation and Deceit against Officers Loux and
Plaintiff’s remaining three claims are against the individual
officers under Pennsylvania state law.
We shall address each
claim in turn.
Intentional Infliction of Emotional Distress
We begin by observing that the Pennsylvania Supreme Court
has, for at least the past twenty five years, repeatedly declined
to expressly adopt the Restatement (Second) of Torts, §46 (1965),
while at the same time holding that it sets forth the minimum
elements necessary to sustain a cause of action for intentional
infliction of emotional distress and recognizing that
Pennsylvania lower and federal courts have found it to be an
accurate description of that tort in Pennsylvania.
Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 181, 754
A.2d 650, 652 (2000); Hoy v. Angelone, 554 Pa. 134, 151, n. 10,
720 A.2d 745, 754, n.10 (1998); Kazatsky v. King David Memorial
Park, 515 Pa. 183, 184, 527 A.2d 988, 989 (1987).
appears that, for all intents and purposes, Pennsylvania
recognizes the tort, as formulated by the foregoing section of
Specifically, Section 46 states:
1) 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
(2) Where such conduct is directed at a third person, the
actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who
is present at the time, whether or not such distress
results in bodily harm, or
(b) to any other person who is present at the time, if
such distress results in bodily harm.
And, as the drafters’ commentary to the Section explains,
... It has not been enough that the defendant has acted with
an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his
conduct has been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to punitive
damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case
is one in which the recitation of the facts to an average
member of the community would arouse his resentment against
the actor, and lead him to exclaim, “Outrageous!”
Thus, “[c]ases which have found a sufficient basis for a cause of
action of intentional infliction of emotional distress have had
presented only the most egregious conduct.”
Hoy, 554 Pa. at 151-
152, 720 A.2d at 754 (citing Papieves v. Lawrence, 437 Pa. 373,
263 A.2d 118 (1970); Banyas v. Lower Bucks Hospital, 293 Pa.
Super. 122, 437 A.2d 1236 (1981) and Chuy v. Philadelphia Eagles
Football Club, 595 F.2d 1265 (3d Cir. 1979).
What’s more, in the
absence of expert medical confirmation that a plaintiff has
actually suffered the claimed emotional distress, such a claim
for intentional infliction of emotional distress cannot succeed.
Wecht v. PG Publishing Co., 1999 Pa. Super. 28, 725 A.2d 788, 791
(Pa. Super. 1999)(citing Kazatsky, 515 Pa. at 197-99, 527 A.2d at
995); Britt v. Chestnut Hill College, 429 Pa. Super. 263, 272,
632 A.2d 557, 561 (1993).
In this case, there is absolutely no evidence whatsoever
that the defendant officers intended to cause the plaintiff any
The video and audio recordings of Ms.
Gorman’s arrest show that the officers were courteous and
respectful throughout this event.
As previously noted, it was
only in response to Plaintiff’s increasingly oppositional and
hostile behavior following her failure of the field sobriety
testing and being advised that she was placed under arrest, that
Corporal Richwine warned her that she would be tased if she
didn’t cooperate and sit in the back of the police cruiser.
Plaintiff responded by inviting the officers to tase her and by
continuing to refuse to comply with their requests.
is no question that being stopped by the police and subsequently
arrested for driving under the influence is inordinately
stressful and emotionally distressing, we respectfully observe
that both her arrest and her subsequent tasing resulted from a
series of decisions and behaviors undertaken by the plaintiff
Accordingly, we do not find that the plaintiff has any
evidence to support her assertion that the individual defendants
either acted outrageously or extremely or with the specific
intention of causing her emotional distress.
In addition, Plaintiff has not provided the requisite
expert medical confirmation that she, in fact, suffered any
emotional injury either.
For these reasons, we shall grant the
motion for summary judgment and enter judgment in favor of the
defendants and against the plaintiff on Count IV of the Second
Misrepresentation and Deceit
In Count V, Plaintiff asserts that in his written police
report and in his attestation before a magisterial district
justice Corporal Richwine misrepresented that it was necessary to
taser her and that only a single taser stun was delivered to her.
Under Pennsylvania law, a claim for intentional
misrepresentation is essentially identical and tantamount to a
claim for fraud.
See, e.g., Presbyterian Medical Center v. Budd,
2003 Pa. Super. 323, 832 A.2d 1066, 1072 (Pa. Super. 2003)(“The
essence of fraud is a misrepresentation fraudulently uttered with
the intent to induce the action undertaken in reliance upon it to
the damage of its victim.”).
“Furthermore, ‘fraud consists of
anything calculated to deceive, whether by single act or
combination, or by suppression of truth, or suggestion of what is
false, whether it be by direct falsehood or by innuendo, by
speech or silence, word of mouth or look or gesture.’” Rohm and
Haas Co. v. Continental Casualty Co., 566 Pa. 464, 781 A.2d 1172,
1179 (2001)(quoting Moser v. DeSetta, 527 Pa. 157, 589 A.2d 679,
682 (1991)); R.W.E. v. A.B.K., 2008 Pa. Super. 253, 961 A.2d 161,
167-168 (Pa. Super. 2008).
“In Pennsylvania, fraud-based claims
of this sort require proof of the following elements by clear and
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with knowledge of its
falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on
it; (5)justifiable reliance on the misrepresentation; and
(6) the resulting injury was proximately caused by the
EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 275 (3d
Cir. 2010)(citing, inter alia, Skurnowicz v. Lucci, 798 A.2d 788,
793 (Pa. Super. 2002); Hunt v. U.S. Tobacco Co., 538 F.3d 217,
225, n. 13 (3d Cir. 2008).
In this matter, we find nothing erroneous or false in the
contents of Cpl. Richwine’s police report or in the affidavit of
probable cause that he presented to the district justice.
Consequently, Plaintiff cannot make out a cause of action for
In addition, Plaintiff herself has
acknowledged the truth of the statements and representations
contained in Cpl. Richwine’s report and affidavit – indeed, she
pled guilty to the offense with which she was thereby charged.
(Defendants’ Exhibit “L”; Pl’s Dep., at p. 111).
Plaintiff has adduced no evidence that she ever withdrew or
revoked her guilty plea or that her conviction and sentence were
otherwise reversed, set aside or declared invalid, we conclude
that Defendant Richwine is entitled to the entry of judgment in
his favor as a matter of law.
See, e.g., Heck v. Humphrey, 512
U.S. 477, 486-487, 114 S. Ct. 2364, 2372, 129 L. Ed.2d 383
(1994)(holding that claim for damages arising out of conviction
or sentence that has not been invalidated is not cognizable under
The motion for summary judgment is therefore granted in
favor of defendant and against plaintiff on Count V as well.
Assault and Battery
In addition to accusing the individual officer defendants of
the unlawful use of excessive force in the course of arresting
her, Plaintiff has also charged Officer Loux individually with
assault and battery under Pennsylvania common law in Count III of
her Second Amended Complaint.
“Assault is an intentional attempt by force to do an injury
to the person of another, and a battery is committed whenever the
violence menaced in an assault is actually done, though in ever
so small a degree, upon the person.”
Renk v. City of Pittsburgh,
537 Pa. 68, 641 A.2d 289, 293 (1994)(quoting Cohen v. Lit
Brothers, 166 Pa. Super. 206, 209, 70 A.2d 419, 421 (1950));
Brownstein v. Gieda, 649 F. Supp. 2d 368, 375 (M.D. Pa. 2009).
police officer, however,
“may use reasonable force to prevent interference with the
exercise of his authority or the performance of his duty.
In making a lawful arrest, a police officer may use such
force as is necessary under the circumstances to effectuate
the arrest. The reasonableness of the force used in making
the arrest determines whether the police officer’s conduct
constitutes an assault and battery.”
“Police officers are privileged to commit a battery pursuant
to a lawful arrest, but the privilege is negated by the use of
Groman v. Township of Manalapan, 47 F.3d 628,
634 (3d Cir. 1995)(citing Edwards v. City of Philadelphia, 860
F.2d 568, 572 (3d Cir. 1988)); Mills v. City of Harrisburg, 589
F. Supp. 2d 544, 557 (M.D. Pa. 2008).
Moreover, to make out a
case for the intentional tort of assault and battery, a plaintiff
must also prove that he did not consent to the tortious conduct
because consent vitiates the wrongfulness of the conduct.
v. American Tobacco Co., 161 F.3d 127, 147-148 (3d Cir. 1998);
Schall v. Vazquez, 322 F. Supp. 2d 594, 601-602 (E.D. Pa. 2004).
In application of the foregoing to the case at hand, we reiterate our earlier finding that the amount of force utilized to
place Plaintiff under arrest on November 19, 2008 was only that
which was required to obtain compliance and therefore reasonable.
Hence, we find that the battery of which Plaintiff complains
against Officer Loux was privileged as it occurred within the
course and scope of a lawful arrest.
Additionally, as is clear
from the audiotape of this incident and the depositions of Cpl.
Richwine, Officer Loux and the plaintiff herself, Plaintiff
actually invited the police to tase her.
(See, e.g. Pl’s Dep.,
Consequently, we further find that the wrongfulness of the
battery was effectively destroyed in this case by Plaintiff’s
Summary judgment is therefore properly entered in
favor of Officer Loux on Count III.
In view of all of the foregoing, we see no necessity to
consider the issue of qualified immunity as the defendants’
motion for summary judgment shall be granted in its entirety.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHEALE A. GORMAN
: CIVIL ACTION
: NO. 10-CV-6760
OFFICER EDWARD LOUX,
CORPORAL AARON M. RICHWINE
and OFFICER BARRY J. SZAMBOTI :
AND NOW, this
day of April, 2012, upon
consideration of Defendants’ Motion for Summary Judgment (Doc.
No. 27) and Plaintiff’s Response thereto, it is hereby ORDERED
that the Motion is GRANTED and Summary Judgment is hereby entered
in favor of Defendants and against Plaintiff on all of the Counts
of the Second Amended Complaint in no amount.
BY THE COURT:
s/J. Curtis Joyner
J. CURTIS JOYNER,
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?