JOHNSON v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 4/30/15. 4/30/15 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
As Administratrix of the Estate of
Kenyado D. Newsuan, Deceased,
CITY OF PHILADELPHIA; and
POLICE OFFICER THOMAS DEMPSEY, :
April 30, 2015
In the early morning hours of April 22, 2012, Kenyado Newsuan was naked, high on
PCP, and causing a commotion outside of his girlfriend’s home in north Philadelphia. Police
Officer Thomas Dempsey responded to the scene, where he and Newsuan thereafter engaged in a
violent altercation that ended with Dempsey fatally shooting Newsuan. Geraldine Johnson,
Newsuan’s sister and the administratrix of his estate, subsequently filed this lawsuit against
Dempsey and the City of Philadelphia under a variety of federal and state causes of action.
Essentially, Johnson claims that Dempsey used excessive force against Newsuan and that the city
failed to properly train and supervise its officers in handling such a situation. The defendants
filed a motion for summary judgment, to which the plaintiff responded. Because the undisputed
facts show that Dempsey did not act unreasonably in his use of lethal force, all of plaintiff’s
claims must fail. Accordingly, I will enter judgment in favor of defendants.
For summary judgment purposes, the court views the facts in the light most favorable to
the nonmoving party, which means that in cases such as this one, the court “adopt[s] . . . the
plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). Here, that account
can be found in plaintiff’s reply to defendants’ statement of undisputed facts, see Pl.’s Reply
(Doc. No. 12) at 2-7, as well as in plaintiff’s own statement of facts, see id. at 8-11. 1 In both,
plaintiff largely accepts defendants’ account of the events in question. Where those accounts
differ, however, I have relied on plaintiff’s version of the facts.
On the morning of Sunday, April 22, 2012, Officer Thomas Dempsey was on solo patrol
in a radio car in the city’s 35th police district, which generally covers the Olney neighborhood of
north Philadelphia. Dempsey Dep. 20:20-21:14, Oct. 28, 2014. While on duty, Dempsey was
armed with an ASP baton, a taser, and his service weapon, a nine-millimeter handgun. Id. at
62:17-19; 63:1-3; 123:11-18. The handgun was kept in a belt holster with a locking mechanism
designed to impede its accidental or improper removal. Id. at 123:19-124:7. At approximately
2:00 AM, Dempsey received a radio call about a naked man in public on the 5800 block of North
Mascher Street. Id. at 85:17-23. Dempsey responded to the call along with two other officers
who were also on patrol in the district at that time. Id. at 84:8-11. The officers did not find
anyone at the reported location, so they resumed their patrols. Id. at 85:17-86:19. At
approximately 5:30 AM, Dempsey received another call about a naked man at the intersection of
North Mascher Street and Nedro Avenue, or the 5800 block of North Mascher Street. Id. at
As part of the court’s scheduling order of July 10, 2014 (Doc. No. 5), I directed any party filing a motion for
summary judgment to also file a statement of undisputed facts—that is, “a separate, short and concise statement, in
numbered paragraphs, of the material facts as to which the party contends there is no genuine issue to be tried.” See
Order at 2 ¶ 7. I further ordered any party opposing such a motion to file a reply to this statement of undisputed
facts, noting that “[a]ll factual assertions set forth in the statement required to be served by the moving party shall be
deemed admitted unless controverted by the statement required to be served by the opposing party.” Id. To the
extent that plaintiff’s reply to defendants’ statement of undisputed facts may differ from plaintiff’s own statement of
facts, therefore, I will consider the reply to be controlling under the terms of the scheduling order.
87:12-23. Dempsey responded and did not find anyone matching that description. Id. at 91:1092:13. Again, Dempsey resumed his patrol of the district. Id. at 92:17-21.
At approximately 6:00 AM, while he was writing a parking ticket on the 6000 block of
North Mascher Street, Dempsey was flagged down by a passing motorist, who informed him that
there was a naked man at North Mascher Street and Nedro Avenue. Id. at 95:13-18. Dempsey
radioed in the information and drove to the 5800 block of North Mascher Street. Id. at 97:9100:15. There, Dempsey saw a naked black man standing in the street. Id. at 101:7-9. The man,
who would later be identified as Kenyado Newsuan, began walking toward the building in which
his girlfriend lived. Id. at 104:21-24. Dempsey did not radio in to dispatch that he had arrived
on the scene. Id. at 106:3-8.
Dempsey exited his patrol car and ordered Newsuan to come toward him. Defs.’
Statement of Undisputed Facts (Doc. No. 10-1) at 3 ¶ 20; Pl.’s Reply at 4 ¶ 20. Dempsey saw
that Newsuan was completely naked and appeared to be holding nothing in his hands. Pl.’s
Reply at 4 ¶ 18. Newsuan then briefly entered and exited the building at 5834 North Mascher
Street. Id. at 5 ¶ 21. Newsuan then moved toward Dempsey, and as he approached, Dempsey
fired his taser at Newsuan. Defs.’ Statement of Undisputed Facts at 3 ¶ 22; Pl.’s Reply at 4 ¶ 22.
Plaintiff admits that at this point, the eyewitness most sympathetic to plaintiff’s account—
Newsuan’s girlfriend, Christina La Torre—went back into her house and “did not see any further
struggle between Newsuan and Officer Dempsey.” Defs.’ Statement of Undisputed Facts at 3
¶ 25; Pl.’s Reply at 5 ¶ 25; La Torre Dep. 43:4-47:16, Nov. 10, 2014.
By plaintiff’s own admission, being hit with a taser did not stop Newsuan from
continuing to approach Dempsey, as Newsuan came up and grabbed Dempsey by the shirt. Pl.’s
Reply at 10. Plaintiff admits that Newsuan then “began to struggle” with Dempsey. Id. at 5
¶ 26. 2 Plaintiff further admits that “[d]uring the struggle, Newsuan slammed Officer Dempsey
against parked cars and attempted to strike him in the head.” Id. at ¶ 27. The force with which
Newsuan threw Officer Dempsey against one car was such that it caused the side panel of the
door to incur a 2-3 foot dent. 3 Plaintiff’s reply admits and eyewitness testimony confirms this
account: Juan Cruz, a resident of the 5800 block of North Mascher Street who viewed the events
that morning, testified that Newsuan began “actually beating the officer” and “slamming the
officer, sort of like his head or something, against the windshield of the [police] car.” Cruz Dep.
11:19-12:9, Oct. 28, 2014. Raimundo Rivera, another resident of the same block who also
witnessed the altercation, testified that Newsuan “slam[med] the officer against his patrol car and
grab[bed] him by the neck and start[ed] pummeling his head against the car.” Rivera Dep.
12:23-13:3, Oct. 28, 2014.
Newsuan next began pulling at the gun in Dempsey’s belt holster. Dempsey Dep.
131:16-18. He attempted to take Officer Dempsey’s gun. Defs.’ Statement of Undisputed Facts
at 3-4 ¶¶ 27, 30; Pl.’s Reply at 6 ¶¶ 30-31. Dempsey asserts that Newsuan “had a grip” and was
“trying to pull on it” Id. at 132:3-4. 4 Again, eyewitnesses corroborate this account. Cruz
testifies that “it seems like [Newsuan] was either going for the officer’s gun or grabbing the
officer’s gun belt.” Cruz Dep. 12:21-23. Rivera testifies that Newsuan “reach[ed] for his gun”
and that as Newsuan “tr[ied] to reach for his gun, the officer [tried] to push him off with his
I note that plaintiff’s statement of facts does not mention any struggle between Newsuan and Dempsey—rather,
that account jumps from Newsuan’s grabbing Dempsey by the shirt to Dempsey’s drawing his service weapon and
firing it at Newsuan. Pl.’s Reply at 10. In plaintiff’s reply to defendants’ statement of undisputed facts, however,
plaintiff admits to the key facts of defendants’ account: Newsuan slammed Dempsey into parked cars, tried to strike
him in the head, and attempted to take his gun. Id. at 5 ¶¶ 26-27, 6 ¶ 30. Plaintiff denies only that Dempsey truly
felt he was in danger and that Newsuan could have succeeded in removing the gun from Dempsey’s holster. Id.
See Mot. Summ. J. Ex. H, at P08 (crime scene photograph showing damage to side of parked car).
Plaintiff “admit[s] that this will be the testimony of [Dempsey, but] denie[s] that Mr. Newsuan ever had any
remote chance to take Officer Dempsey’s gun from his holster.” Pl.’s Reply at 6 ¶ 30.
hand, but at the same time he tr[ied] to reach for the gun so that [Newsuan] doesn’t get it.”
Rivera Dep. 13:19-14:11. These accounts are not disputed.
At this point, Dempsey removed the handgun from his holster and fired it at Newsuan,
taking two shots, then, after the first volley did not appear to bring him down, taking two more.
Pl.’s Reply at 6 ¶¶ 31-32. According to an autopsy report from the medical examiner’s office,
Newsuan was struck twice in the chest and once in the abdomen, and he died as a result of these
injuries. See Office of the Medical Examiner’s Autopsy Report (Doc. No. 10-6) at 1-3. The
medical examiner’s office also produced a toxicology report, which found the drug
phencyclidine (commonly known as PCP) present in Newsuan’s blood. See Office of the
Medical Examiner’s Toxicology Report (Doc. No. 10-7) at 1.
STANDARD OF REVIEW
“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.” Fed.
R. Civ. P. 56(a). “Material facts are those that could affect the outcome of the proceeding, and a
dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to
return a verdict for the nonmoving party.” Roth v. Norfalco, LLC, 651 F.3d 367, 373 (3d Cir.
2011) (citations and internal quotation marks omitted). To establish the existence or absence of a
genuine dispute as to any material fact, a party must “cit[e] to particular parts of materials in the
record” or “show that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.
R. Civ. P. 56(c)(1)(A)-(B).
“In evaluating the motion, ‘the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence.’”
Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 772 (3d Cir. 2013) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). More specifically, as the
Third Circuit has noted, “a court ruling on summary judgment in a deadly-force case should be
cautious . . . to ensure that the officer[ is] not taking advantage of the fact that the witness most
likely to contradict [his] story—the person shot dead—is unable to testify. Thus, a court should
avoid simply accepting what may be a selfserving account by the officer. 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 acted
unreasonably.” Lamont v. New Jersey, 637 F.3d 177, 181-82 (3d Cir. 2011) (internal quotation
marks and citations omitted). But, the Third Circuit added, “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.’” Id. at
182 (quoting Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003)). “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation and internal quotation marks omitted).
Johnson, as administratrix of Newsuan’s estate, brings five claims stemming from
Newsuan’s death. First is an action under 42 U.S.C. § 1983 against Dempsey, on the ground that
Dempsey violated Newsuan’s Fourth Amendment rights. Second is a Monell action against the
City of Philadelphia, under the theory that the city failed to train and/or supervise its police
officers. Third is a common law assault and battery claim against Dempsey. Fourth is an action
against both defendants under Pennsylvania’s Wrongful Death Act. Fifth is an action against
both defendants under Pennsylvania’s Survival Act.
Section 1983 Claim
Johnson’s first claim is brought against Dempsey under § 1983, which provides for the
imposition of liability on any person who, acting under color of state law, deprives another of
rights, privileges, or immunities secured by the Constitution or laws of the United States. The
statute is not itself a source of substantive rights, but instead provides “a method for vindicating
federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quotation
marks omitted). At issue here is Newsuan’s Fourth Amendment right to be free of unreasonable
seizure. As the Third Circuit has explained:
The Fourth Amendment safeguards “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” To prevail on a Fourth
Amendment excessive-force claim, a plaintiff must show that a seizure occurred
and that it was unreasonable under the circumstances. There is no dispute that
[law enforcement officers] “seized” [decedent] when they shot and killed him.
The question, instead, is whether the seizure was unreasonable.
Lamont, 637 F.3d at 182-83 (citations omitted). In determining whether a seizure by use of
lethal force was reasonable, the Third Circuit has further advised that “[i]t is unreasonable for an
officer to use deadly force against a suspect unless the officer has good reason ‘to believe that
the suspect poses a significant threat of death or serious physical injury to the officer or others.’”
Id. at 183 (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)). As the Supreme Court has
stated, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. Indeed, “[t]he calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Id. at 396-97. At the motion for summary judgment stage on this Fourth Amendment
claim, therefore, the relevant question is whether plaintiff has adduced evidence of Dempsey’s
unreasonableness in his use of force “sufficient to permit a reasonable jury to return a verdict”
for plaintiff. Roth, 651 F.3d at 373.
The record here falls far short of that bar. It is undisputed that, as Newsuan moved
toward Dempsey on North Mascher Street, being hit with a taser did not stop his approach. It is
undisputed that Newsuan proceeded to grapple with Dempsey and attempted to strike him in the
head—and eyewitness testimony confirms that Newsuan did succeed in slamming Dempsey’s
head into the windshield of the police car. He also threw Officer Dempsey against the side of a
car with such force that his body created a 2-3 foot dent in the side panel. Most importantly, it is
undisputed that, in the course of this struggle, Newsuan attempted to grab hold of Dempsey’s
gun. Presented with this evidence, no reasonable jury could find that a reasonable officer in
Dempsey’s position lacked “good reason to believe that [Newsuan] pose[d] a significant threat of
death or serious physical injury.” Lamont, 637 F.3d at 183. Particularly in view of Newsuan’s
attempt to take Officer Dempsey’s firearm, after an already significant physical struggle, any
reasonable police officer would be in fear of death or serious bodily injury. In other words, no
reasonable jury could find that Dempsey’s actions were unreasonable under the circumstances,
and since the use of force was not unreasonable, it did not amount to a violation of the Fourth
Amendment. The § 1983 claim against Dempsey must fail at this stage, therefore, because “the
evidence is [in]sufficient to permit a reasonable jury to return a verdict” for plaintiff. Roth, 651
F.3d at 373.
Plaintiff raises two main counterarguments, but neither is availing. First, plaintiff asserts
that Dempsey “knew that it was virtually impossible for Newsuan” to gain control of his gun,
because “Dempsey was carrying a PPD issued police gun and holster which prevents a person
from taking the gun out of the holster who is not trained in the special method of how to draw a
gun from the holster,” adding, “It is very difficult, if not impossible, for a person who is not the
officer wearing the holster to remove the gun from the holster.” Pl.’s Reply at 10. For one thing,
Dempsey’s subjective beliefs are irrelevant: as the Supreme Court has remarked, “An officer’s
evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use
of force; nor will an officer’s good intentions make an objectively unreasonable use of force
constitutional.” Graham, 490 U.S. at 397. The relevant, objective criterion is what a reasonable
officer in Dempsey’s position would have believed. For another, the low odds of successfully
removing a gun from a police officer’s holster are not dispositive here. Even before Newsuan
grabbed for Dempsey’s gun, Newsuan repeatedly struck Dempsey in the head and slammed him
into the windshield of his patrol car, all after having been unaffected by a taser. A reasonable
officer in that position has good reason to believe that he faces a significant threat of death or
serious bodily injury—regardless of how difficult (though not impossible, as plaintiff admits) it
may be for the person that he is grappling with to remove the gun from the officer’s holster.
Second, plaintiff argues that the court must look beyond “those few seconds when Officer
Dempsey and Mr. Newsuan were struggling” and instead consider whether, “looking at the
totality of the circumstances, Police Officer Dempsey’s actions were reasonable.” Pl.’s Reply at
24. To that end, plaintiff argues that Dempsey “should have retreated and awaited the arrival of
other police officers whom he knew were on their way.” Id. at 26. But the Third Circuit rejected
this type of reasoning in Lamont v. New Jersey. There, law enforcement officers shot and killed
a suspected car thief during a standoff when, after being ordered to show his hands and freeze,
the suspect made a motion as if he were drawing a gun out of his waistband. Lamont, 637 F.3d
at 179. The administrator of his estate filed suit under § 1983 and argued, inter alia, that “the
troopers should have set up a perimeter around the woods and used a K-9 to flush [the decedent]
out.” Id. at 185. As the court put it, “If the decision to enter the woods was unreasonable, the
plaintiff reasons, then any force employed once in the woods was necessarily unreasonable, too,
because the force would not have been used had the troopers not gone into the woods.” Id.
Rather than adopt this logic, however, the court described it as “premised on a flawed
understanding of the doctrine of proximate causation.” Id. As the court explained:
[T]he troopers’ decision to enter the woods did not proximately cause
[decedent’s] death. Rather, [decedent’s] noncompliant, threatening conduct in the
woods was a superseding cause that served to break the chain of causation
between the entry and the shooting. Holding otherwise would . . . tend to deter
police officers from approaching and detaining potentially violent suspects.
Id. at 186 (citation and internal quotation marks omitted). The same must be said in this case.
Dempsey’s decisions not to wait for fellow officers and not to retreat into his vehicle were not
the proximate cause of Newsuan’s death. Rather, Newsuan brought about his death through his
own violent conduct—in particular, his attempt to take Dempsey’s gun. 5 In sum, no reasonable
Plaintiff’s assertion that Dempsey acted unreasonably by violating Philadelphia Police Department Directive 136
(Doc. No. 12 at 38-46) is similarly unavailing. Directive 136 sets out policy and procedures for handling a “severely
mentally disabled person” (“SMDP”), which includes someone experiencing psychosis caused by drug use. Id. at
39. First, even though plaintiff avoids quoting any such language, Directive 136 expressly recognizes that officers
may deviate from its protocols when their safety is threatened. For instance, plaintiff asserts that under Directive
136, “the main objective of handling a mentally disabled person is to ‘aid and protect the interest’ of such a person.”
Pl.’s Reply at 22. However, as the Directive provides in full:
The main objective when handling a “Severely Mentally Disabled Person” (SMDP) is to aid and
protect the interests of the SMDP, innocent bystanders, and family members in the immediate
area, without compromising the safety of all parties concerned, including the police officers.
Id. at 38 (emphasis added). Likewise, plaintiff quotes Directive 136 as stating that “‘aggressive action will not be
taken by police personnel.’” Id. at 22. In Directive 136, the sentence reads: “Aggressive action will not be taken by
police personnel, unless there is an immediate threat to life or physical danger to the SMDP, the police, or other
civilians present.” Id. at 38. Second, assuming arguendo that Dempsey violated Directive 136, in Lamont the Third
Circuit affirmed the district court’s granting of summary judgment to the officers on the basis that their initial use of
deadly force was reasonable even where they allegedly “violated standard police procedures.” Lamont, 637 F.3d at
185; see also Manigault v. King, 339 F. App’x 229, 232 (3d Cir. 2009) (nonprecedential) (“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.”).
jury could find on the evidence presented here that Newsuan’s Fourth Amendment rights were
Plaintiff next brings a Monell claim against the City of Philadelphia for failing to
properly train and/or supervise its police officers in dealing with persons in Newsuan’s situation.
Under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), a municipality
can be found liable 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.” Id. at 694. But as the
Supreme Court has held, a municipality cannot be found liable on a Monell claim where there
has been no underlying violation of rights under § 1983. City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986). Here, the evidence shows that Dempsey did not violate Newsuan’s Fourth
Amendment rights. See supra Part III.A. Without that underlying violation, plaintiff cannot
maintain a Monell claim against the city for its alleged failure to train and supervise its officers.
See Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d Cir. 1996) (“[H]ad there not been an
underlying constitutional violation in the first instance, plaintiff’s ‘failure to train’ claim against
the City would not stand.”). Defendants are therefore entitled to judgment on this claim as well.
Assault and Battery
The evidence likewise fails to support plaintiff’s common law assault and battery claim
against Dempsey. As defendants rightly argue, this claim is barred by Pennsylvania’s Political
Subdivision Tort Claims Act (“Tort Claims Act”), 42 Pa. Cons. Stat. Ann. §§ 8541 et seq. The
Because I conclude that Dempsey did not violate Newsuan’s Fourth Amendment rights in his use of deadly force, I
need not address defendants’ claims of qualified immunity. But I note in passing that where “plaintiff fails to make
out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.”
Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).
Tort Claims Act provides to municipal employees acting within the scope of their employment
immunity from suit “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.” Id. The Tort Claims
Act does contain several exceptions, however, and plaintiff argues that one applies here: the
exception for “willful misconduct.” Id. § 8550.
The Commonwealth Court of Pennsylvania directly addressed the applicability of the
“willful misconduct” exception to a claim of assault and battery against police officers in Lucas
v. City of Philadelphia, No. 1778 C.D. 2011, 2012 WL 8691954 (Pa. Commw. Ct. June 6, 2012).
As the court explained:
Where a plaintiff alleges assault and battery against a police officer, he must
establish the officer acted outside the scope of his job, i.e., committed willful
misconduct. For police officers, such willful misconduct is established by
showing the officer not only intentionally used force, but intentionally used
excessive force. This heightened standard, willful misconduct aforethought,
shields police officers from liability for damages incidental to police operations,
which may otherwise constitute an intentional tort if committed by a private
The question of whether an officer used excessive force requires determining
whether the force used was objectively reasonable in light of the surrounding facts
and circumstances. Relevant considerations include whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting or attempting to evade arrest by flight. If a police officer uses reasonable
force in making a lawful arrest, he cannot be liable for assault and battery.
Id. at *3 (citations and internal quotation marks omitted). Applying that standard, the court
affirmed a grant of summary judgment for defendants where “the undisputed material facts
support the . . . determination that both officers used a reasonable amount of force . . . under the
circumstances.” Id. at *5 (citing Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994)).
Here, for all the reasons discussed in detail above, the undisputed facts—in particular,
plaintiff’s admission that Newsuan attempted to strike Dempsey in the head and tried to take his
gun—likewise support the determination that Dempsey used a reasonable amount of force
against Newsuan under the circumstances. Thus, plaintiff has not shown a material issue of fact
as to whether Dempsey’s actions amounted to “willful misconduct,” and as a result, I must
conclude that Dempsey has immunity from plaintiff’s assault and battery claim under state law.
Wrongful Death Act and Survival Act
Finally, plaintiff brings claims against both defendants under Pennsylvania’s Wrongful
Death Act, 42 Pa. Cons. Stat. Ann. § 8301, and the state’s Survival Act, § 8302. But “wrongful
death and survival actions are not substantive causes of action; rather, they provide a vehicle
through which plaintiffs can recover for unlawful conduct that results in death.” Sullivan v.
Warminster Twp., 765 F. Supp. 2d 687, 707 (E.D. Pa. 2011); see also Carroll v. Skloff, 202 A.2d
9, 10-11 (Pa. 1964) (“The cause of action created by the survival statute is strictly derivative. . . .
It is grounded upon an existing personal cause of action which the deceased could have but did
not institute during his or her lifetime.”), overruled on other grounds by Amadio v. Levin, 501
A.2d 1085 (Pa. 1985); Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390-91 (2002)
(“A wrongful death action is derivative of the injury which would have supported the decedent’s
own cause of action and is dependent upon the decedent’s cause of action being viable at the
time of death.”), aff’d, 838 A.2d 662 (Pa. 2003). In other words, just as plaintiff’s Monell claim
cannot survive without having shown an underlying violation of rights, plaintiff’s Wrongful
Death Act and Survival Act claims must fall without having adduced evidence of a viable claim
on one or more of the underlying causes of action.
For the reasons set forth above, I will enter judgment for defendants on all claims. An
appropriate order follows.
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