SCOTT v. CASEY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 2/12/2018. 2/13/2018 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
OFFICER WILLIAM CASEY, et al.,
February 12, 2018
This case involves the alleged use of excessive force on pro se Plaintiff, Darren Scott.
Plaintiff alleges that Defendant, Officer William Casey, applied excessive force through the use
of a taser gun on him. Defendant has filed a Motion for Summary Judgment, asking that I
dismiss all claims against him, to which Plaintiff has not responded. For the reasons that follow,
Defendant’s Motion for will be granted.
FACTUAL AND PROCEDURAL HISTORY 1
On March 12, 2014, Plaintiff went to a sandwich shop in Chester County to purchase
hoagies. While in the store, Plaintiff suffered a medical episode that he says was a seizure.
Paramedics Ramona Bucolo and Susan Boran responded to the scene and found Plaintiff on the
floor “semi-responsive, not alert and [not] oriented.” Initially Plaintiff resisted being moved into
the ambulance, but eventually consented when the paramedics explained that they needed to
The following facts are undisputed and taken from Defendant’s Statement of
Undisputed Material Facts, which cites to the record.
check him out. (Def.’s Statement of Material Facts (“Def.’s SOF”) ¶¶ 3, 5-6; Compl. ¶¶ 8-9;
Def.’s Mot., Ex. D at 27-28.)
Plaintiff became combative once inside of the ambulance, ripping off his blood pressure
cuff, throwing it at the paramedic trainee inside, and becoming loud and agitated. Ms. Bucolo
radioed for police assistance because “[y]ou could see that he was escalating.” Defendant
responded to Ms. Bucolo’s call, and while waiting for him to arrive, Ms. Bucolo was able to
calm Plaintiff down and begin checking his vital signs. When Defendant arrived, Ms. Bucolo
asked him to escort Plaintiff’s friend, who was standing outside of the ambulance, away from the
door. Defendant did so and then approached the ambulance. When Defendant stepped into the
ambulance, Plaintiff became agitated and “lost control.” Plaintiff, who was on the stretcher in
front of Ms. Bucolo and next to cabinets full of medical supplies, unfastened his seat belt and
knocked supplies out of the cabinets. Plaintiff was “extremely irate [and] flailing.” After
Plaintiff calmed down a bit, Defendant left the ambulance to again escort Plaintiff’s friend, who
had returned, away from the ambulance door. When Defendant came back to the ambulance, he
observed Plaintiff kick Ms. Bucolo in her chest, knocking her into the back of the ambulance.
Plaintiff no longer appeared disoriented when he kicked Ms. Bucolo. (Def.’s SOF ¶¶ 7-10, 17;
Def.’s Mot., Ex. D at 35-40; Id., Ex. E at 24-25, 27-28; Id., Ex. F at 42-43.)
Upon seeing Plaintiff kick Ms. Bucolo, Defendant re-entered the ambulance and
attempted to seize Plaintiff, however, Plaintiff grabbed Defendant by the throat with his right
hand and a struggle ensued. Plaintiff, who is between six feet two inches and six feet three
inches tall, was “pretty much on top of” Defendant, who is five feet five inches tall. Defendant
could not get Plaintiff to calm down, so he deployed his taser, which initially was ineffective
because only one of the two projected prongs entered Plaintiff’s body and completed a circuit.
Plaintiff continued to flail and strike things in the ambulance, and again tried to attack
Defendant. Defendant then put the taser on Plaintiff’s body and “pulled for a drive stun which is
a five second circuit.” This second attempt at using the taser was also ineffective because
Plaintiff pulled away.
Defendant applied the taser for a third time.
Plaintiff then ceased
resisting, and Defendant did not deploy the taser again. Once subdued, Plaintiff was transported
to the hospital. (Def.’s SOF ¶¶ 12-16; Def.’s Mot., Ex. F at 42-44, 81-83, 98-100; Id., Ex. D at
Plaintiff does not remember what occurred after he had the seizure in the sandwich store.
After falling to the ground, he next remembers being tased. After that, he next recalls waking up
in a hospital bed. (Def.’s SOF ¶ 4; Def.’s Mot., Ex. C at 81, 86.)
Plaintiff later pled guilty to aggravated assault on Ms. Bucolo. (Def.’s SOF ¶ 19; Def.’s
Mot., Ex. G.)
Plaintiff filed his Complaint on March 11, 2016, raising a claim for excessive force
against Defendant, as well as state law claims for assault and battery. Plaintiff also brought
claims for municipal liability under 42 U.S.C. § 1983 against the City of Chester and intentional
infliction of emotional distress against Defendant.
The parties later entered a stipulation
dismissing the claim against the City of Chester, as well as the claim for intentional infliction of
emotional distress against Defendant. The remaining claims are those for excessive force (Count
I), and assault and battery (Count III) against Defendant. As noted above, Defendant has moved
for summary judgment on both claims. Although I issued Orders on October 18, 2017 and
November 8, 2017 directing Plaintiff to file a response to the Motion for Summary Judgment or
risk having it treated as unopposed, he has failed to respond.2
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “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.” A dispute is “genuine” if there is a sufficient evidentiary basis on
which a reasonable fact finder could return a verdict for the non-moving party, and a factual
dispute is “material” if it might affect the outcome of the case under governing law. Kaucher v.
County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The court must view the evidence in the light most favorable to the nonmoving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported
assertions, conclusory allegations or mere suspicions” are insufficient to overcome a motion for
summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D.
Pa. 2010) (citing Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 461 (3d Cir. 1989)).
The movant “always bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Plaintiff was originally represented by counsel in this case. Following a hearing on
June 7, 2017 at which counsel detailed a fissure in the attorney-client relationship, I allowed
counsel to withdraw. (Doc. No. 27.) Plaintiff is now proceeding pro se.
Although Plaintiff has failed to file a response to the Motion for Summary Judgment,
Federal Rule of Civil Procedure 56(e) permits me to grant summary judgment “if the motion and
supporting materials—including the facts considered undisputed—show that the movant is
entitled to it.”
While I have an obligation to construe a complaint liberally when filed by a pro se
plaintiff, a pro se plaintiff is not relieved of the obligation to set forth facts sufficient to
overcome summary judgment. Despite Plaintiff’s failure to respond, I have carefully reviewed
Where the non-moving party bears the burden of proof on a particular issue at trial, the
moving party’s initial Celotex burden can be met by showing that the non-moving party has
“fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party’s case.” Id. at 322. After the moving party has met its initial burden, summary judgment is
appropriate if the non-moving party fails to rebut the moving party’s claim by “citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials” that show a genuine issue of material fact or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A).
a. Count I: Excessive Force
Defendant asserts that summary judgment should be granted on this claim because his use of
the taser was objectively reasonable as a matter of law. A plaintiff may bring a civil action under
42 U.S.C. § 1983 against an official who violates his constitutional rights.
provides in relevant part:
Every person who, under the color of any statute, ordinance, regulation,
custom, or usage, of any State or territory . . . causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges
or immunities secured by the Constitution . . . shall be liable to the party
injured in an action at law . . . .
Section 1983 excessive force claims against police officers are “analyzed under the Fourth
Amendment and its reasonableness standard.” Mellott v. Heemer, 161 F.3d 117, 121 (3d Cir.
1998) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); see also United States v.
Johnstone, 107 F.3d 200, 204 (3d Cir. 1997).
This standard considers whether the officer’s actions were “objectively reasonable in
light of the facts and circumstances confronting [the officer], without regard to their underlying
intent or motivation.” Graham, 490 U.S. at 397. This determination is based upon the totality of
the circumstances, including: “(1) whether the suspect posed an immediate threat to the safety of
the officer or others; (2) whether the suspect was actively resisting arrest; and (3) the severity of
the crime at issue.” Suber v. Peterson, WL 1875542, at *3 (E.D. Pa. Aug. 4, 2005) (citing
Graham, 490 U.S. at 396). “In considering whether a seizure was reasonable, the Court must
judge from the perspective of a reasonable officer on the scene, rather than with the perfect
vision of hindsight.” Id.
Turning to the uncontested facts of this case, Defendant possessed the following
knowledge before deploying his taser for the first time: he had been informed by Ms. Bucolo’s
radio call that police assistance was needed; upon arriving, Defendant witnessed Plaintiff angrily
knocking supplies out of the shelves in the ambulance and unstrapping himself from the
stretcher; Plaintiff kicked Ms. Bucolo in the chest such that she fell to the back of the ambulance;
Plaintiff, a much larger man than Defendant, grabbed Defendant by the throat; and Plaintiff
refused to calm down. Plaintiff continued to resist and flail, thus Defendant deployed his taser
These undisputed facts establish that Plaintiff posed a severe threat to the safety of
Defendant and Ms. Bucolo. Plaintiff was physically unhinged, resisted all attempts to calm
down, and had just assaulted both Defendant and Ms. Bucolo. The amount of force applied by
Defendant was proportional to the threat he perceived, and thus reasonable in light of the totality
of the circumstances. No reasonable jury could find that Plaintiff did not present a credible
threat to Defendant and others. See Patrick v. Moorman, 536 F. App’x 255, 259 (3d Cir. 2013)
(finding use of a taser against a fleeing alleged bank robber reasonable and in line with the
controlling policy of the police department); Brown v. Crynar, 484 F. App’x 676, 681 (3d Cir.
2012) (finding it was reasonable for an officer to deploy a taser where he was dispatched for
assistance, arrived and witnessed the plaintiff scuffling with another officer, was informed
plaintiff had been tased already and continued to resist, and witnessed plaintiff lying on the
ground and refusing to release his hands).
Defendant asks that I also find qualified immunity attaches, thus shielding him from
liability. A court must engage in a two-part inquiry to determine if qualified immunity applies to
official actions: (1) “whether the facts that a plaintiff has alleged or shown make out a violation
of a constitutional right”; and (2) “whether the right at issue was ‘clearly’ established at the time
of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)). “An officer is entitled to qualified immunity if he
meets at least one of [the] two prong inquiry.” Patrick, 536 F. App’x at 259-60. Because I
conclude that Plaintiff’s constitutional rights were not violated, I need not reach the second
prong. Defendant’s actions were reasonable and therefore satisfy the first prong, thus he is
entitled to qualified immunity.
b. Count III: Assault and Battery
Defendant contends he is immune from suit on the assault and battery claim based on
Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. Cons. Stat. Ann.
§§ 8541 et seq. and 8545 et seq. Under Pennsylvania law “[a]ssault is an intentional attempt by
force to do 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, 641 A.2d 289, 293 (Pa. 1994). The Supreme Court of Pennsylvania has
said that “[a] police officer may use reasonable force to prevent interference with the exercise of
his authority or the performance of his duty.” Id. “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.” Id. Thus, “[t]he appropriate standard for determining an officer’s
potential liability for assault and battery when making an arrest is whether excessive or
unreasonable force was used in effectuating that arrest.” Glass v. City of Philadelphia, 455 F.
Supp. 2d 302, 366 (E.D. Pa. 2006).
Here, because I have concluded Defendant did not use excessive force, there can be no
claim of liability for assault and battery. I thus need not determine whether Defendant is
immune under the PSTCA.
Plaintiff has failed to respond to the pending Motion for Summary Judgment and has thus
failed to point to any evidence creating a genuine issue of material fact. The record before me
establishes that no reasonable jury could conclude that Defendant used excessive force on
Plaintiff, and thus also did not commit assault and battery. Summary judgment is appropriate
with respect to all claims.
An appropriate Order follows.
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