DEVINE v. MIDDLETOWN TOWNSHIP et al

Filing 60

MEMORANDUM SIGNED BY HONORABLE C. DARNELL JONES, II ON 8/1/16. 8/5/16 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DIANE DEVINE, individually and as
Administratrix of the Estate of
Michael F. Devine, Jr., deceased
Plaintiff,

:
:

v.

CIVIL ACTION
NO. 14-1072

:
MIDDLETOWN TOWNSHIP;
MIDDLETOWN TOWNSHIP POLICE
DEPARTMENT; JOSEPH SCHUCK;
JOSEPH BUCKLEY; and
MARK LEONHAUSER
Defendants.

:
:
MEMORANDUM

Jones, II
I.

J.

August 1, 2016

Introduction

Plaintiff Diane Devine—Decedent Michael Devine’s wife and the administrator of his
estate—commenced this action against Defendants alleging various civil rights and common law
violations regarding the shooting death of Mr. Devine.

In particular, Plaintiff claims the police

failed to utilize specialized training to deal with emotionally disturbed individuals, thereby
resulting in the unreasonable use of excessive force.

Defendants have filed a Motion for

Summary Judgment, which is now ripe for this Court’s review.
Defendants’ Motion shall be granted.

1

For the reasons set forth herein,

II.

Factual Background

The undisputed facts 1 establish that on February 23, 2012 at approximately 3:37 a.m.,
Michael Devine placed a 9-1-1 call to report two burglars in the basement of a residence located
at 1637 West Lincoln Highway, Langhorne, Pennsylvania. (SUF ¶ 2) Mr. Devine told dispatch
he would be waiting for police outside the house in a green Volkswagen Passat.

(SUF ¶ 3)

In

response, officers from the Middletown Township Police Department were dispatched, with
Officer Joseph Schuck being the first to arrive on the scene. (SUF ¶¶ 4-5.)

Officer Schuck

reported that he drove his marked police vehicle up to a male wearing a dark sweatshirt with the
hood pulled tightly around his face.

(SUF ¶¶ 5-6.) The officer lowered his window to speak

with the man, at which time the man revealed himself to have a knife and told Officer Schuck he
was going to kill him. (SUF ¶¶ 7, 9.) Officer Schuck drove 30 to 40 feet forward to the end of the
street and exited his vehicle. (SUF ¶¶ 8, 10.) Upon doing so, the officer drew his weapon and
ordered the man to stop and drop the knife.
1

(SUF ¶ 10.)

Ignoring the officer’s directives, the

For purposes of this discussion, this Court shall refer to Defendants’ Statement of Undisputed
Facts as “SUF” and Plaintiff’s Response thereto as “RSUF.” The court notes that although
Plaintiff denies every statement of fact by Defendants except one, Plaintiff’s Response is largely
devoid of specific citations to the record to support her denials. As this Court’s Policies and
Procedures clearly mandate,
All summary judgment motions and oppositions to such motions must contain a
recitation of facts with complete and accurate citation to the record . . . Without
exception, all facts set forth shall be deemed admitted unless addressed by the
opposing party as set forth herein . . . The Court will not consider any description
of a fact that is not supported by citation to the record. Statements of Material
Facts in support of or in opposition to a motion for summary judgment must
include specific and not general references to the parts of the record that support
each of the statements, such as the title of or numbered reference to a document,
the name of a deponent and the page(s) of the deponent’s deposition, or the
identity of an affidavit or declaration and the specific paragraph relied upon.
Pinpoint citations are required.
See “Judge C. Darnell Jones II Chambers Policies and Procedures,” Civil Cases, §D(4)-(5) (emphasis
added); see also Fed.R.Civ.P. 56.
Accordingly, any facts denied by Plaintiff without pinpoint citations to the record shall be
deemed admitted.
2

man began to approach in a shuffling “zombie walk” manner, somewhere between walking and
running. (RSUF ¶ 10.)

Officer Schuck repeatedly ordered the man to stop and drop the knife

but the individual continued to approach with the knife raised, repeating that he was going to kill
the officer. (SUF ¶¶ 11-12.) Officer Schuck began stepping back to create space between himself
and the man, eventually reaching a grassy incline. (SUF ¶¶ 11, 13; RSUF ¶ 13.) At this point,
Officer Schuck feared for his safety and mentally prepared to discharge his weapon. (SUF ¶ 14.)
While this was occurring, Officer Daniel Buckley arrived on the scene and witnessed Officer
Schuck retreating up the grassy slope with the man wielding the knife from approximately 10
feet away. (SUF ¶¶ 15-16.) In response to these events, Officer Buckley shouted orders for the
individual to stop and drop the knife, however the man instead turned and began to approach
Officer Buckley. (SUF ¶¶ 16-17, 19.) Despite Office Buckley’s repeated commands to stop and
drop the knife, the man transferred the weapon from his right to left hand, told Officer Buckley
he was going to kill him, and took another step towards the officer.

(SUF ¶¶ 18-19.) The man

continued towards Officer Buckley, at which time the officer again ordered he stop and drop the
knife.

(SUF ¶¶ 19-20-21.) The man took yet another step towards Officers Buckley, at which

time Officer Buckley discharged his firearm. (SUF ¶¶ 19, 21.) This shot caused the man to fall to
the ground, where he was disarmed by the third officer to arrive at the scene, Officer Mark
Leonhauser. (SUF ¶¶ 23-24.) Officer Leonhauser, accompanied by Sergeant Feeney and
Officer Webb, then entered the residence at 1637 West Lincoln Highway to see if they could
locate the second person originally reported to have been burglarizing the house but found no
one inside and the premises appeared undisturbed.

(SUF ¶ 25; Defs.’ Mot. Summ J. Ex. 5 at 2.)

Meanwhile, another officer (Stum) administered first aid to the man, subsequently identified as

3

Michael Devine. (SUF ¶ 26; RSUF ¶ 26.) An ambulance transported Mr. Devine to the
hospital, where he later died. (SUF ¶ 27.)
III.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), a court shall grant summary judgment “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the
moving party is entitled to a summary judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); FED. R. CIV. P. 56(a).

“If the moving party meets its burden, the

burden shifts to the nonmoving party to go beyond the pleadings and come forward with specific
facts showing that there is a genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d
Cir. 2015) (internal citations and quotation marks omitted). Therefore, in order to defeat a
motion for summary judgment, the non-movant must establish that the disputes are both (1)
material, meaning concerning facts that will affect the outcome of the issue under substantive
law; and (2) genuine, meaning the evidence must be such that a reasonable jury could return a
verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“Although the initial burden is on the summary judgment movant to show the absence of a
genuine issue of material fact, ‘the burden on the moving party may be discharged by
“showing”--that is, pointing out to the district court--that there is an absence of evidence to
support the nonmoving party’s case’ when the nonmoving party bears the ultimate burden of
proof.” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001) (quoting Celotex, 477
U.S. at 325).

“[A] nonmoving party must adduce more than a mere scintilla of evidence in its

favor and cannot simply reassert factually unsupported allegations contained in its pleadings[.]”
Williams v. West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted).
4

Accordingly,

summary judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
IV.

Discussion
A.

Excessive Force
i.

Officer Buckley

In order to sustain an excessive force claim brought under to 42 U.S.C. §1983, “a
plaintiff [must] show that a seizure occurred and that it was unreasonable.” Curley v. Klem, 298
F.3d 271, 279 (3d Cir. 2002) (citing Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)); see
also Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that seizures and excessive force
claims against law enforcement should be analyzed under the Fourth Amendment’s “objective
reasonableness standard”).

The court must determine “objective reasonableness” through a

thorough analysis of the totality of the circumstances “as viewed from the perspective of the
officer on scene.” Kopec v. Tate, 361 F.3d 772, 776-777 (3d Cir. 2004) (citing Graham, 490 U.S.
at 396-397). The circumstances must also be viewed “without regard to [the officer’s] underlying
intent or motivations.” Phong Duong v. Telford Borough, 186 F. App’x 214, 217 (3d Cir. 2006)
(quoting Graham, 490 U.S. at 397.)

In doing so, the court considers, among other things, “(1)

the severity of the crime at issue, (2) whether the suspect poses an imminent threat to the safety
of the police or others in the vicinity, and (3) whether the suspect attempts to resist arrest or flee
the scene.” Santini v. Fuentes, 795 F.3d at 417 (citing Graham, 490 U.S. at 396). “The
‘objective reasonableness’ test of an officer’s actions is meant to give ‘deference to the judgment
of reasonable officers on the scene,’ and we are ‘cautioned against the 20/20 vision of
hindsight.’” Phong, 186 F. App’x at 217 (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).
5

Where the principal witness—here, the decedent—is unable to testify, “a court should
avoid simply accepting ‘what may be a selfserving account by the officerf[s]. It must also look at
the circumstantial evidence that, if believed, would tend to discredit the police officer[s’] story,
and consider whether this evidence could convince a rational fact finder that the officer[s] acted
unreasonably.’” Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir. 2011) (quoting Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). 2

However,

This is not to say that the summary judgment standard should be applied with
extra rigor in deadly-force cases. Rule 56 contains no separate provision
governing summary judgment in such cases. Cf. Wallace v. SMC Pneumatics,
Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Just as in a run-of-the-mill civil action,
the party opposing summary judgment in a deadly-force case must point to
evidence—whether direct or circumstantial—that creates a genuine issue of
material fact, ‘and may not rely simply on the assertion that a reasonable jury
could discredit the opponent[s’] account.’ Estate of Smith v. Marasco, 318 F.3d
497, 514 (3d Cir. 2003).
Lamont, 637 at 182.
While “reasonableness” is more commonly a question for the jury, a defendant can
prevail on summary judgment if “after resolving all factual disputes in favor of the plaintiff, the
record demonstrates that the officer’s use of force was objectively reasonable under the
circumstances.” Kopec, 361 F.3d at 772 (quoting Scott, 39 F.3d at 915).

“In assessing the

reasonableness of the officers’ actions, we account for the fact that they must make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary.” Kubicki v. Whitemarsh Twp., 270 F. App’x 127, 129 (3d Cir. 2008)
(quotation marks and internal citations omitted).

2

“Even where the officer must stand trial, he still benefits from the favorable law precluding
consideration of intent or motive, use of hindsight in judging tense, unpredictable situations, and
allowances for mistaken judgments…” Bennett v. Murphy, 274 F.3d 133, 137 (3d Cir. 2001)
(quoting Bennett v. Murphy, 127 F. Supp. 2d 689, 694 (W.D. Pa. 2000)).
6

In this case, there is no dispute that the officers recognized Mr. Devine was not walking
normally.

However, it is also undisputed that Mr. Devine: was concealing his identity in a dark

sweatshirt with the hood tied closely around his face; was armed with a large knife; had
repeatedly disobeyed the officers’ commands; and, had come to within twenty-one (21) feet of
each officer 3 with the knife raised and pointed towards Officers Schuck and Buckley,

3

This Court is compelled to point out that Plaintiff’s Response to the instant motion is replete
with omissions of fact and conclusions of law. The following are just a few examples:
•
In support of Plaintiff’s claim that Mr. Devine was could barely walk, she states
in her brief:
Defendant Schuck described Mr. Devine in the following way: “He was
approaching—it was strange—the best way to describe it, and I’ll try to
get a little better, but it almost looked like a—what we see commonly in
television movies like a zombie walk, like he was walking strange . . .”
(Pl.’s Br. Opp’n Summ. J. 13) (emphasis added).
However, when read in context, the testimony establishes that Mr. Devine was not as
feeble as described by Plaintiff:
Q.
How was he approaching you?
A.
He was approaching -- it was a strange -- the best way to describe it, and
I'll try to get a little better, but it almost looked like a -- what we see
commonly in television movies like a zombie walk, like he was walking
strange, but right at me, it was -- it wasn't a walk. It wasn’t a run. It was
something in between.
It was strange, not like something I've typically seen from just normal
walking or anything.
Q.
Would you say he was shuffling?
A.
Something similar, yes, something like that.
Q.
I think of a person who’s shuffling as they're not really fully lifting, you
know, their feet up and down as they either walk or run; they're kind of-they're shuffling.
It was something -- it was maybe a fast shuffle or a slow and awkward
run. It was – I couldn't describe it exactly. It was unusual, but he was
making progress.
(Schuck Dep. 51:10-24; 52:1-6, Oct. 31, 2014)(emphasis added).
Officer Schuck further testified that the manner in which Mr. Devine approached “added
to how frightening it was because it was – it was creepy” . . . “[I]t was creepy and it seemed
unusual, but nobody else has tried to kill me before. So maybe it’s not unusual. Maybe it’s
what happens when people appear homicidal.” (Schuck Dep. 91:22-23, 94:7-10.) When asked
about distances, Officer Schuck further testified “it was nighttime. So I can’t say that for
certain. He started to advance. By the time I had stopped, he had advanced . . . he had
7

advanced enough that I was worried - - I was worried I was going to be killed.” (Schuck Dep.
73:10-15.)
Officer Buckley testified that Mr. Devine approached Officer Schuck “aggressively . . .
almost like a fighting stance, where he’s bending slightly at the knees, to keep himself balanced,
like a boxer would do[.]” (Buckley Dep. 81:1-24, Oct. 21, 2014.) Officer Buckley further
specified that Mr. Devine “was hunched over, not locking his knees, almost – so he could turn
quickly or be flexible with his movement. He wasn’t walking erect. He looked like he was
getting ready to charge” and that Mr. Devine was not walking at a slow pace but instead, “was
moving with a purpose . . . it’s not fast, it’s controlled, but it’s meant to get him where he needs
to be . . . what was going through my mind at the time was that he was moving in on Officer
Schuck to kill Officer Schuck.” (Buckley Dep. 83:6-10, 84:5-6, 11-12, 17-19.)
•
With regard to the “elderly” characterization of Mr. Devine by Plaintiff, he was
sixty-four (64) years old at the time of the shooting. (Defs.’ Mot. Summ. J. Ex. 9 at 1;
Coroner’s Rep. 1) Additionally, he had a hood tied tightly around his face at the time of the
incident, thereby preventing the officers from seeing most of his facial features. (Buckley Dep.
77:9-15) (“[He] had a hoodie, a hooded sweatshirt, and the hood was drawn tight around his face
. . . I just saw maybe his nose and the knife.”); (Leonhauser Dep. 16:13-18, Oct. 31, 2014) (“Mr.
Devine had on a hoodie which was drawn tight. I remember it because as I was running up I
could see the hoodie on him, and I did not know - - I didn’t know if it was a man or woman. I
didn’t know if he was 20 or 80. I could not tell.”).
•
Plaintiff concludes that “[c]haotically, all three men were screaming varying and
conflicting commands from different directions around Mr. Devine.” (Pl.’s Br. Opp’n Summ.
J. 14.) Plaintiff’s characterization of “chaotic” is not based on any evidence of record. More
importantly, the record is devoid of evidence to establish that the officers’ commands were
“conflicting.” (Pl.’s Br. Opp’n Summ. J. 14; McCauley Report dated Jan. 12, 2015 at 13.) This
Court takes judicial notice of the fact that Merriam Webster defines “conflicting” as “being in
conflict, collision, or opposition: incompatible.” Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/conflicting (last visited July 26, 2016). The
officers’ commands in this case were not conflicting but instead, were consistent commands that
when taken together, were aimed at protecting their safety, i.e., “put the knife down, get on the
ground”; “stop . . .drop the knife”; “stop, drop the knife, get on the ground.” (Buckley Dep.
89:22-25, 95:9-9; Schuck Dep. 73:17-18, 74:6-7; Leonhauser Dep. 12:10-11.)
•
Plaintiff maintains a genuine issue of material fact exists regarding how many
steps Mr. Devine took towards Officer Buckley before a shot was fired. Officer Buckley
testified that Mr. Devine took approximately three or four steps towards him with the knife
raised and while stating “I’m going to kill you.” (Buckley Dep. 94:12-25, 95:1-21, 97:10-18.)
Officer Leonhauser testified that his observations only lasted a few seconds and that during that
time, Mr. Devine “stops, turns, and then takes a step toward [sic] Officer Buckley. So in that
three seconds that that occurred, that two to three seconds, yes, there is a time, but if you’re
going to ask me to be anymore [sic] specific that that, I don’t know that I can be.” (Leonhauser
Dep. 15:13-18.) With that said, counsel next asked Officer Leonhauser if Mr. Devine took
more than one step in the direction of Officer Buckley, to which Officer Leonhauser responded
“I saw him take one step and then the shot happened.” (Leonhauser Dep. 16:2-3.) Regardless
of exactly how many steps Mr. Devine took towards Officer Buckley, it is undisputed that he
8

respectively.

Moreover, all of these events occurred within approximately one minute and as

police were responding to the 9-1-1 report of a burglary in progress at that location.
In opposition to the instant motion, Plaintiff’s offer the expert opinion of Dr. R. Paul
McCauley, 4 which Defendants previously sought to preclude.

The matter was referred to

United States Magistrate Judge Lynne A. Sitarski, who ruled that to the extent Dr. McCauley’s
opinions included legal conclusions that invaded the province of the fact finder, said conclusions
were not admissible. (ECF No. 58 at 12-14.)
Dr. McCauley’s report is largely premised on the foundation that the officers
—particularly Schuck—were aware or should have been aware that Mr. Devine was emotionally
disturbed because of his “bizarre conduct.” However, Plaintiff points to no evidence to
establish that Mr. Devine was an “emotionally disturbed person” at the time of the incident or
that the officers had any knowledge or reason to know Mr. Devine was emotionally or mentally
unstable.

As noted earlier, Plaintiff focuses on Officer Schuck’s use of the word “zombie”

during his deposition, while simultaneously omitting all of the other characteristics that were
consistently provided by the officers to describe the manner in which Mr. Devine approached
them, e.g. somewhere between a walk and a run, aggressively, boxer-like stance, looking “like he
was within approximately 12 to 15 of the officer with a butcher knife raised in a threatening
manner, stating “I’m going to kill you.”
4
Plaintiff also attaches a portion of an expert report prepared by Joseph J. Stine. (Pl.’s Br.
Opp’n Summ. J. Ex. C.) Although Mr. Stine determined that “Officer Schuck placed himself in
mortal danger when he backed up the grassy hill with the knife wielding man in close pursuit[,]
he recognized the fact that the “danger came from having an assailant with an edged weapon less
than 21 feet away. That danger was compounded because in the dark of the early morning
hours Officer Schuck was backing up on a grassy incline, This was a potentially deadly risk
that Mr. Devine was exposing Officer Schuck to.” (Pl.’s Br. Opp’n Summ. J. Ex. C, 10-11.)
Based upon a totality of the circumstances surrounding the incident as contained in the record
now before this Court, Mr. Stine also determined that there was no way for the officers to know
whether or not Mr. Devine was emotionally disturbed. (Pl.’s Br. Opp’n Summ. J. Ex. C,
16-19.) With the exception of the one aspect regarding Officer Schuck as just discussed, Mr.
Stine found the officers’ conduct to be proper and reasonable in all other regards.
9

was getting ready to charge.” (Schuck Dep. 51:16-17, 52:3-6; Buckley Dep. 81:1-2,16-18,
83:9-10, 98:5-6, 135:22-24.) Plaintiff similarly refers to Decedent as “elderly” on numerous
occasions, yet omits any reference to testimony that clearly established Mr. Devine had a
sweatshirt hood tied tightly around his face, thereby concealing his identity. 5

Further, he was

not using a cane and gave no indication that he might have a medical condition.

(Schuck Dep.

81:16, 94:16-19; Leonhauser Dep. 16:13-18.)
Dr. McCauley also concludes that Officer Schuck “should have used time to their [sic]
advantage and via radio communication and/or face-to-face communications with PO Buckley
and/or other officers present, developed and coordinated a quick tactical field plan.

(McCauley

Rep. 13.) Dr. McCauley further opined and Buckley should have “operate[d] as a coordinated
two[-]man team” to deal with the situation. (McCauley Rep.13.)

Aside from the fact that the

entire incident happened within approximately one minute and Mr. Devine was positioned
essentially between the officers, the portable radio Officer Buckley had on his person had
become inoperable.

(Buckley Dep. 102:9-10; 135:4-8; 136: 12-23.)

Inasmuch as Mr. Devine

repeatedly refused orders to drop the knife he was holding and continued to aggressively
approach Officer Buckley while stating “I’m going to kill you[,]” the evidence of record
demonstrates there was no opportunity to “coordinate” a “team” or develop and implement a
“plan.” (Buckley Dep. 94:12-17; 95:4-21; 97:3-18; 98:5-6; 135:22-24); see also Schuck Dep.
60:2-5 (“This was going quick. Time for a ton of consideration really wasn’t there.

What I

did consider, and what I did do, acting as soon as I could to protect myself, was to draw the
firearm.”).

5

See supra, note 3.
10

Additionally, Dr. McCauley goes to great lengths to attempt to demonstrate how the
officers’ conduct violated the Middletown Township Police Protocols.

However, for purposes

of assessing an excessive force claim such as the one at bar, “[a]lthough the particular practices
of law enforcement entities may ‘vary from place to place and from time to time,’ the objective
reasonableness of a police officer’s actions under the Fourth Amendment does not ‘turn upon
such trivialities.’” Ickes v. Borough of Bedford, 807 F. Supp. 2d 306, 320-321 (W.D. Pa. 2011)
(quoting Whren v. United States, 517 U.S. 806, 815 (1996)); see also Manigault v. King, 339 F.
App’x 229, 232 (3d Cir. 2009) (“Although the officers were trained to maintain a distance of at
least 21 feet when facing a suspect carrying a knife, their abandonment of this protocol cannot
form the basis for a remedy under § 1983 or deprive them of qualified immunity.”); Johnson v.
City of Phila., 105 F. Supp. 3d 474, 481 n.5 (E.D. Pa. 2015) (same); Mohney v. Hageter, Civ.
No. 11-340, 2013 U.S. Dist. LEXIS 12098, at *21-22 (W.D. Pa. Jan. 30, 2013)(“Plaintiff’s
reliance on state police policy guidelines is misplaced. The source of [the decedent’s] rights is
the Fourth Amendment to the United States Constitution, rather than the Pennsylvania State
Police procedures manual. Because the Fourth Amendment protects citizens from unreasonable
seizures, the ultimate issue is whether the officers acted reasonably, not whether they followed
department guidelines.”).
When questioned at deposition about the opinions set forth in his Reports, Dr. McCauley
ultimately conceded that under the circumstances at the time of the incident, the officers were not
required to retreat and that there exists no criminal or civil law that prohibited their use of deadly
force when faced with the proximate threat of deadly force.

(McCauley Dep. 51:4-11, 56:3-5,

58:7-10; 84:9-25, 85:1-4.) Plaintiff has come forth with no evidence to dispute this critical fact;
argument and conclusions of law do not suffice.
11

Accordingly, there remains no genuine issue as to material fact regarding the propriety of
the force used by Officer Buckley and summary judgment is appropriate as to this Defendant on
this claim.
ii.

Officers Schuck and Leonhauser

With specific regard to Officers Schuck and Leonhauser, it is well established that “to
prevail on a §1983 claim against multiple defendants, a plaintiff must show that each individual
defendant violated his constitutional rights.’” Grant v. Winik, 948 F. Supp. 2d 480, 498 (E.D. Pa.
2013) (quoting Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005)).

Under very

limited circumstances, “a police officer has a duty to take reasonable steps to protect a victim
from another officer’s use of excessive force, even if the excessive force is employed by a
superior.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Defendants argue summary judgment is appropriate with regard to Plaintiff’s excessive
force claims against Officers Schuck and Leonhauser because neither used any force against Mr.
Devine.

(Defs.’ Mot. Summ. J. 13.) Inasmuch as this Court finds Officer Buckley did not

employ excessive force under the circumstances with which he was faced, Officers Schuck and
Leonhauser cannot be held liable for unholstering their guns and commanding that Mr. Devine
stop, drop the knife, and get on the ground, in an effort to save not only Officer Buckley’s life,
but their own, as well.
Accordingly, Defendants Schuck and Leonhauser are similarly entitled to judgment in
their favor with regard to Plaintiff’s excessive force claim. 6

6

With regard to her excessive force claims against all officer defendants, this Court notes that
Plaintiff has failed to substantively contest two critical points. First, the uncontroverted
testimony establishes that during the relevant time period, the officers believed they were in
pursuit of two burglars in the immediate vicinity and that the knife-wielding man who threatened
to kill them was one of the perpetrators. (Buckley Dep. 101:7-14; Leonhauser Dep. 21:19-24,
12

B.

State-Created Danger

In addition to Plaintiff’s excessive force claim, she brings a state-created danger claim
against Defendants. In order to establish the existence of a state-created danger, a plaintiff must
prove four factors:
(1)

the harm ultimately caused was foreseeable and fairly direct;

(2)

a state actor acted with a degree of culpability that shocks the conscience;

(3)

a relationship between the state and the plaintiff existed such that the
plaintiff was a foreseeable victim of the defendant's acts, or a member of a
discrete class of persons subjected to the potential harm brought about by
the state's actions, as opposed to a member of the public in general; and

(4)

a state actor affirmatively used his or her authority in a way that created a
danger to the citizen or that rendered the citizen more vulnerable to danger
than had the state not acted at all.

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (quotation marks and citations
omitted).

With specific regard to the second element, in addition to proving that the officer’s

conduct “shocks the conscience[,]” a plaintiff must also prove that the officers realized as much
at the time and deliberately disregarded “not just a substantial risk, but a great risk that serious
harm would result.” Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002).
Quite significant to the instant matter, is the tenet that:
A plaintiff faces the highest bar when the state actor accused of wrong-doing was
faced with a “‘hyperpressurized’” environment requiring a snap judgment. In such
cases, we permit recovery only if the state actor had an actual intent to cause
harm. By contrast, “where deliberation is possible and officials have the time to
make ‘unhurried judgments,’ deliberate indifference is sufficient.” Importing
aspects of Eighth Amendment jurisprudence, we have defined “deliberate
indifference” as requiring “conscious[ ] disregard [of] ‘a substantial risk of
serious harm.”’ In any event, “[m]ere negligence is not enough to shock the
conscience”
22:1-2; McCauley Rep.4, 12; Defs.’ Mot. Summ. J. Ex. 1.) Second, Mr. Devine was holding a
knife with an eight-inch blade in a threatening manner while within just several feet of the
officers, thereby justifying their use of lethal force to protect their own lives.
13

Vargas v. City of Phila., 783 F.3d 962, 973-974 (3d Cir. 2015) (internal citations omitted).
In this case, the officers arrived on the scene not knowing who was standing in the street
wearing a dark sweatshirt with the hood tied tightly around their face, wielding an 8-inch-blade
butcher knife. The entire incident occurred within approximately one minute, during which time
the individual—later identified as Mr. Devine—pursued Officer Schuck and then Officer
Buckley while holding the blade of the knife toward them and repeatedly stating that he was
going to kill them. The record clearly establishes that Defendants reasonably assumed the
individual was one of the perpetrators they were called to apprehend for an alleged burglary.
Inasmuch as Defendants’ conduct was reasonable and not deliberately indifferent, it necessarily
fails to “shock the conscience.” 7
For these reasons, Defendants’ shall be granted judgment on this claim.
C.

Supervisory / Municipal Liability 8

Defendants next seek summary judgment on Count Three of Plaintiff’s Complaint, in
which she alleges that the Township’s policies and/or customs inflicted injury upon Mr. Devine.

7

Plaintiff argues that Officer Buckley shot Mr. Devine without ever giving him “the
opportunity to comply” with Buckley’s commands to stop and drop the knife and that said action
“shocks the conscience.” (Pl.’s Br. Opp’n Summ. J. 28.) Aside from the legal justification
discussed more fully hereinabove, Mr. Devine had several opportunities to comply with these
directives, as Officer Schuck had given the same commands just seconds earlier. Instead of
complying at that time, Mr. Devine turned his attention to Officer Buckley, advancing within 12
to 15 feet of him with the knife held in a threatening position while stating “I’m going to kill
you.”
8
Count III of Plaintiff’s Complaint is entitled “Supervisory Liability, 42 U.S.C. § 1983.”
(Compl. ¶¶ 66-75.) In said Count, Plaintiff states in pertinent part that “Defendants were
responsible for, acquiesced , and/or were deliberately indifferent through policy, practice,
customs, and/or procedures . . . ” (Compl. ¶ 66.) Inasmuch as Plaintiff uses the terms
“supervisor [sic] liability” and “municipal liability” interchangeably in their Opposition Brief,
this Court shall construe Count III as a claim for both and as directed against Defendants
Middletown Township and the Middletown Township Police Department.
14

As a preliminary matter,
When a suit against a municipality is based on § 1983, the municipality can only
be liable when the alleged constitutional transgression implements or executes a
policy, regulation or decision officially adopted by the governing body or
informally adopted by custom. In other words, the County may not be held liable
for constitutional torts under § 1983 on a vicarious liability theory rooted in
respondeat superior, but it can be held responsible as an entity when the injury
inflicted is permitted under its adopted policy or custom.
Mulholland v. Gov’t County of Berks, 706 F.3d 227, 237 (3d Cir. 2013) (quotation marks and
internal citations omitted).
Therefore, a party alleging such liability under Section 1983 “must show that they were
deprived of ‘rights, privileges, or immunities secured by the Constitution and laws,’ and that the
deprivation of those rights was the result of an official government policy or custom.” Id. at
236 (quoting 42 U.S.C. § 1983).

It necessarily follows that “if there is no violation in the first

place, there can be no derivative municipal claim.”

Id. at 238 n.15 (citing Los Angeles v.

Heller, 475 U.S. 796, 799 (1986)).
Inasmuch as Plaintiff has failed to demonstrate any such deprivation, her supervisory /
municipal liability claim is rendered legally moot and Defendants are entitled to judgment on
same.
D.

Qualified Immunity

In response to all of Plaintiff’s constitutional claims, Defendants raise the affirmative
defense of qualified immunity.

This Court finds that even if Plaintiff was successful on her

excessive force claim, Defendants would be entitled to qualified immunity.
The doctrine of qualified immunity has been explained as follows:
“Police officers, embodying the authority of the state, are liable under § 1983
when they violate someone’s constitutional rights, unless they are protected by
qualified immunity.” The doctrine of qualified immunity shields government
officials who perform discretionary functions “from liability for civil damages
15

insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Santini v. Fuentes, 795 F.3d at 416-417 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
In determining the applicability of qualified immunity to a particular scenario,
The formula for analyzing a qualified immunity claim is a several stage process.
First, the court is to decide whether a constitutional violation has occurred, and
then it must proceed to determine whether that right was clearly established at the
time of the alleged violation. A defendant may . . . be shielded from liability for
civil damages if [his] actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
****
Once these requirements are found to have been satisfied, the inquiry proceeds to
another, closely related issue, that is, whether the officer made a reasonable
mistake as to what the law requires. Saucier emphasized that the inquiry for
qualified immunity eligibility is distinct from establishment of a constitutional
violation of excessive force. As the Court explained, the concern of the immunity
inquiry is to acknowledge that reasonable mistakes can be made as to the legal
constraints on particular police conduct . . . if the officer’s mistake as to what the
law requires is reasonable, however, the officer is entitled to the immunity
defense.
Carswell v. Borough of Homestead, 381 F.3d 235, 241-42 (3d Cir. 2004).
There is a clearly established “prefer[ence] to resolve the qualified immunity issue at the
summary judgment, or earlier, stage.”

Id. at 241.

As discussed at length hereinabove, no constitutional violation occurred because the force
utilized by the officers was objectively reasonable. 9 As such, this Court need not reach the
question of “whether the officer made a reasonable mistake as to what the law requires.” See
9

With regard to Dr. McCauley’s opinions regarding the officers’ alleged failure to follow
police department policies and protocols, the same does not preclude application of qualified
immunity. Ickes, 807 F. Supp. 2d at 323 (“[A]lleged failure to conform [officer’s] conduct to
state or local law cannot defeat his entitlement to qualified immunity.”) (citing Davis v. Scherer,
468 U.S. 183, 194 (1984) (“Officials sued for constitutional violations do not lose their qualified
immunity merely because their conduct violates some statutory or administrative provision.”).
16

Bornstad v. Honey Brook Twp., 211 F. App’x 118, 125 (3d Cir. 2007) (finding no need to
proceed through qualified immunity analysis when a plaintiff has not established the existence of
a constitutional violation).
Therefore, assuming arguendo summary judgment would not be appropriate with regard
to Plaintiff’s excessive force claims against Defendants, said Defendants would be entitled to
qualified immunity, as Plaintiff has put forth insufficient evidence to show that “every
‘reasonable official’ in Officer [Buckley’s] shoes would have understood ‘beyond debate’ that
[discharging his firearm at Mr. Devine] constituted excessive force.” Brown v. Cwynar, 484 F.
App’x 676, 681 (3d Cir. 2012) (citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d
1149 (2011)).
E.

Common Law Claims

Defendants additionally seek summary judgment on Plaintiff’s common law claims of
assault and battery, and negligence.
Under the Federal Rules of Civil Procedure,
The district courts may decline to exercise supplemental jurisdiction over a claim.
. . . if-- (1) the claim raises a novel or complex issue of State law, (2) the claim
substantially predominates over the claim or claims over which the district court
has original jurisdiction, (3) the district court has dismissed all claims over which
it has original jurisdiction, or (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.”
28 U.S.C. 1367(c).
The Third Circuit has directed that “where the claim over which the district court has
original jurisdiction is dismissed before trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Ashton v. City of Uniontown, 459 F. App’x

17

185, 191 (3d Cir. 2012) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995)).
When viewed against the backdrop of Plaintiff’s federal claims, it would not be judicially
economical, nor convenient or fair for the parties to have to commence litigation in state court
regarding these two remaining claims.
i.

As such, this Court shall address same on the merits.

Assault and Battery

Under Pennsylvania law, “[a] police officer may be held liable for assault and battery
when [the factfinder] determines that the force used in making an arrest is unnecessary or
excessive.” Glass v. City of Philadelphia, 455 F. Supp. 2d 302, 366 (E.D. Pa. 2006) (quoting
Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).

Where there is there was “no

finding of excessive force by the officers . . . there can be no claim for liability for assault and
battery.” Id.
Inasmuch as the officers did not utilize excessive force in this matter, Plaintiff’s assault
and battery claim fails under Pennsylvania law.

See Rodriguez v. Panarello, 119 F. Supp. 3d

331, 345 (E.D. Pa. 2015) (state assault and battery claim based on allegedly willful misconduct
necessarily fails when there has been a finding that an officer’s use of force was objectively
reasonable).

Accordingly, Defendants shall be granted judgment on this claim.
ii.

Negligence

Lastly, Defendants seek summary judgment on Plaintiff’s negligence claim.

With

specific regard to Defendants Middletown Township and Defendant Middletown Township
Police Department, “no local agency shall be liable for any damages on account of any injury to
a person or property caused by any act of the local agency or an employee thereof or any other
person.” 42 Pa.C.S.A. § 8541.

As to the remaining Defendants, “[a]n employee of a local
18

agency is liable for civil damages on account of any injury to a person or property caused by acts
of the employee which are within the scope of his office or duties only to the same extent as his
employing local agency and subject to the limitations imposed by this subchapter.” 42 Pa.C.S.A.
There are certain enumerated exceptions to these rules, none of which apply here. 10

§ 8545.

However, Plaintiff invokes the “willful misconduct” provision set forth in Section 8550, which
permits recovery “[i]n any action against a local agency or employee thereof for damages on
account of an injury caused by the act of the employee in which it is judicially determined that
the act of the employee caused the injury and that such act constituted a crime, actual fraud,
actual malice or willful misconduct[.]” 42 Pa.C.S.A. § 8550.

In support of same, Plaintiff

maintains that the officers knew Mr. Devine was emotionally disturbed and therefore committed
willful misconduct.
Again, Plaintiff has provided no evidence of record to demonstrate that the officers knew
or should have known Mr. Devine was emotionally disturbed.

Accordingly, their actions did

not constitute willful misconduct and Plaintiff’s negligence claim against Defendants fails.

10

Exceptions include situations involving: vehicle liability; care, custody or control of personal
property; real property; trees, traffic controls and street lighting; utility service facilities; streets;
sidewalks; and, care, custody or control of animals. 42 Pa.C.S.A. § 8542(b).
19

IV.

CONCLUSION
As Plaintiff acknowledges, a party opposing summary judgment must “do more than

simply show there is some metaphysical doubt as to material facts.” (Pl.’s Br. Opp’n Summ. J.
9) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Plaintiff herein has failed to do so.

This is undoubtedly a tragic case that has presumably left

all involved with many more questions than answers.

However, the record—when assessed in

its entirety— clearly demonstrates that under the circumstances in which the officers found
themselves during the dark, early morning hours of February 23, 2012, their conduct was not
unreasonable. Accordingly, Defendants’ Motion shall be granted in its entirety.
An appropriate Order follows.
BY THE COURT:
/s/

20

C. Darnell Jones, II

J.