ARNDT v. SLATINGTON BOROUGH et al

Filing 46

MEMORANDUM/OPINION THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF NO. 23, IS GRANTED IN PART AND DENIED IN PART. A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 2/21/17. 2/22/17 ENTERED AND COPIES E-MAILED.(ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
LARRY PAUL ARNDT, JR.,

:
:
Plaintiff,
:
:
v.
:
:
SLATINGTON BOROUGH;
:
POLICE OFFICER WILLIAM BORST;
:
SERGEANT DAVID ALERCIA; and
:
DETECTIVE TIMOTHY WAGNER,
:
:
Defendants.
:
__________________________________________

No. 5:16-cv-00339

OPINION
Defendants’ Motion for Summary Judgment, ECF No. 23 – Granted in part
Joseph F. Leeson, Jr.
United States District Judge
I.

February 21, 2017

Introduction
Defendants Slatington Borough, Police Officer William Borst, Sergeant David Alercia,

and Detective Timothy Wagner have filed a motion for summary judgment against Plaintiff
Larry Arndt. For the reasons set forth below, summary judgment is awarded in favor of
Defendants on Arndt’s failure to train claims, but denied in all other respects due to genuine
disputes of material fact, which a jury will be required to determine.

1

II.

Factual Background 1
The undisputed facts show that on the afternoon of March 10, 2015, after drinking at a

neighborhood bar, Arndt returned to his home and began to argue with his mother and daughter
about his drinking habit. Defs.’ Mot. Ex. 1, Arndt Dep. 54:19-58:25, ECF No. 23-3. 2 At
approximately 3:00 p.m., Arndt called 911 and asked them to send four police officers to take
him to jail because no one wanted him around and it would make his mother and daughter happy.
See Defs.’ Mot. Ex. 2, Arndt 911 call.
Shortly thereafter, Police Officer William Borst, Sergeant David Alercia, and Detective
Timothy Wagner arrived at Arndt’s residence and found Arndt sitting on the steps of his front
stoop. Arndt Dep. 69:7-9. According to Sergeant Alercia, as the officers approached Arndt and
began to question him, Arndt exhibited signs of intoxication; in particular, Sergeant Alercia
noted Arndt’s speech, demeanor, bloodshot eyes, and the scent of alcohol on his person. Defs.’
Mot. Ex. 3, Alercia Dep. 52:9-22, ECF No. 23-5. When the officers asked Arndt what was
wrong, Arndt replied that he was arguing with his mother and daughter and was “not doing
good.” Arndt Dep. 71:2-5. Arndt asked the officers to “take [him] away and arrest [him].” Arndt
Dep.71:13-14. The officers replied that they had no reason to do so. Arndt Dep. 71:22-23.
Arndt then stated that he would give the officers a reason to arrest him, and he asked
Detective Wagner if he had a lighter. Arndt Dep. 71:25- 72:6. Detective Wagner handed his

1

Defendants failed to include with their motion a “separate, short, and concise statement
of the material facts, in numbered paragraphs, as to which the moving party contends there is no
genuine issue to be tried,” contrary to the requirements of the Court’s scheduling order entered
on August 8, 2016. See ECF No. 13.
2
Contrary to the Undersigned’s policies and procedures, when citing deposition testimony
neither Defendants nor Arndt attached a copy of the entire transcript containing the cited
testimony. See The Honorable Joseph F. Leeson, Jr., Policies and Procedures,
https://www.paed.uscourts.gov/documents/procedures/leepol.pdf.
2

cigarette lighter to Arndt, who then reached in his pocket, retrieved a pipe filled with marijuana,
brought the pipe to his mouth, and began to light the marijuana. Arndt Dep. 73:1-2.
The parties dispute what happened next. According to Arndt, as he began to light the
marijuana, Detective Wagner smacked his hand, “grabbed [his] wrist and twisted it up and pulled
it up [his] back.” Pl.’s Br. Opp’n Ex. B., Arndt Dep. 74:22-75:2, ECF No. 25-3. The other two
officers then grabbed Arndt’s left arm and “[p]ulled it and twisted it and shoved it up [his] back.”
Arndt Dep. 78:8-10. Arndt testified that as this occurred, he did not offer any resistance to the
officers’ movements, although he “was tensed—normal reaction, tensing up. . . . My body was
tensed.” Arndt Dep. 79:20-80:1.
The officers present a different account. According to Detective Wagner, after Arndt
began to light the marijuana, Detective Wagner tried to grab the lighter from Arndt’s left hand;
Arndt then pulled his left hand to the center of his chest to prevent Detective Wagner from
controlling his arm. Defs.’ Mot. Ex. 4, Wagner Dep. 27:11-16, ECF No. 23-6. Detective Wagner
then “got ahold of [Arndt’s] wrist.” Wagner Dep. 27:17. According to Sergeant Alercia, after
Detective Wagner grabbed Arndt’s left arm, Sergeant Alercia “grabbed [Arndt’s] right arm by
his elbow and in front of his bicep.” Alercia Dep. 72:22-73:6. In response, Arndt “gave the
straight arm” to Sergeant Alercia, pushing him into a retaining wall. Alercia Dep. 73:18-22.
Officer William Borst then approached Arndt from the front and pushed Arndt’s head down to
shift Arndt’s center of gravity, which allowed Detective Wagner and Sergeant Alercia to move
Arndt’s hands behind his back. Alercia Dep. 76:5-9.
It is undisputed that after getting his hands behind his back, the officers handcuffed
Arndt, who remained seated throughout the encounter. Alercia Dep. 79:3-80:12. After several
requests from the officers, Arndt stood up under his own power and was escorted to the back of

3

the police car. Alercia Dep. 81:1-3. Once in custody, Arndt was moved from the police station to
central booking where he was charged with resisting arrest and various drug offenses; he was
released that evening. See Defs.’ Mot. 5, ECF No. 23-2. According to an incident report prepared
by Detective Wagner, he offered medical services to Arndt at the station after he observed that
Arndt’s left wrist had red marks from the handcuffs; in response, Arndt laughed, asked if
Detective Wagner was kidding, and said he was fine. Defs.’ Mot. Ex. 6, Wagner Incident Report
3, ECF No. 23-8. In an interview with police a few days after the incident, Arndt stated that he
began to feel pain in his arms shortly before his release from the station. See Defs.’ Mot. Ex. 5,
Arndt Interview Video.
Arndt testified that on June 14, 2016, he underwent spinal surgery to address pinched
nerves and compressed and bulging vertebrae that, his medical staff informed him, stemmed
from the March 10, 2015 incident. Arndt Dep. 31:6-32:21. Arndt also testified that he requires
pain medication and physical therapy for injuries to his elbows that he sustained as a result of the
incident. Arndt Dep. 38:23-40:10.
Arndt advances the following claims: (1) pursuant to 42 U.S.C. § 1983, a claim that the
officers used excessive force against him and failed to intervene to prevent such force in
violation of his Fourth Amendment rights, as incorporated against the states by the Fourteenth
Amendment; (2) pursuant to § 1983, a claim that Defendant Slatington Borough was deliberately
indifferent to a need to train and supervise their officers to avoid the constitutional harm Arndt
alleges he suffered; (3) tort claims against the officers for assault and battery.
Defendants move for summary judgment on all of Arndt’s claims, contending that
judgment is warranted in their favor because the force used to restrain and arrest Arndt was
clearly reasonable under the circumstances.

4

III.

Standard of Review
Summary judgment is appropriate if the moving party “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). A fact is material if the fact “might affect the outcome of the suit under the
governing law,” and a dispute is genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When the evidence favoring the nonmoving party is “merely colorable” or “not
significantly probative, summary judgment may be granted.” Id. at 249–50 (citations omitted).
The parties must support their respective contentions—that a fact cannot be or is genuinely
disputed—by “citing to particular parts of materials in the record” 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). “The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
IV.

Analysis

A.

There is a genuine dispute over the material facts concerning whether the officers
applied excessive force in violation of Arndt’s Fourth Amendment rights.
The Fourth Amendment guarantees the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend.
IV. Excessive force claims that “arise in the context of an arrest or investigatory stop” invoke the
protections conferred by the Fourth Amendment, because the “‘reasonableness’ of a particular
seizure depends . . . on how it is carried out.” Graham v. Connor, 490 U.S. 386, 394–95 (1989).
“Determining 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

5

individual’s Fourth Amendment interests’ against the countervailing governmental interests at
stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
Evaluating a claim of excessive force demands “careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. Because the Fourth Amendment’s
standard of “reasonableness” “is not capable of precise definition or mechanical application,” see
id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)), the totality of the circumstances must be
considered to determine if the seizure was justified, see id. (quoting Garner, 471 U.S. at 8–9).
The inquiry is objective: the reasonableness of a seizure must be evaluated “in light of the facts
and circumstances confronting [the officers], without regard to their intent or motivation.” Id. at
397 (citing Scott v. United States, 436 U.S. 128, 137–39 (1978); Terry v. Ohio, 392 U.S. 1, 21
(1968)). But those facts and circumstances “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396 (citing Terry, 392
U.S. at 20–22). This is so because the standard of reasonableness imposed by the Fourth
Amendment accounts 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.” See id. at 397.
In addition to those factors enumerated by the Supreme Court in Graham, the United
States Court of Appeals for the Third Circuit has acknowledged other considerations that may be
relevant, including “the possibility that the persons subject to the police action are themselves
violent or dangerous, the duration of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be armed, and the number of persons with

6

whom the police officers must contend at one time.” See Sharrar v. Felsing, 128 F.3d 810, 822
(3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir.
2007). In addition, “the fact that the physical force applied was of such an extent as to lead to
injury is . . . a relevant factor to be considered.” Sharrar, 128 F.3d at 822. But none of these
factors is alone controlling: “[t]he Supreme Court made clear in Graham that each case
alleging excessive force must be evaluated under the totality of the circumstances.” See id.
Defendants contend that under the standard of reasonableness set forth by the Supreme
Court in Graham, the force used by the officers was objectively reasonable. They contend that
the record shows that Arndt “fought against efforts to apply handcuffs,” pushed Sergeant
Alercia, and “had to be restrained before he could escalate the situation.” Defs.’ Mot. 10.
Defendants claim that the officers applied only “enough force to rotate [Arndt’s] arms until he
was handcuffed,” a “minimal” use of force that was justified under the circumstances. Id.
Arndt responds that the record shows that although he “reflexively tensed in response to
the actions of the officers . . . he offered no resistance whatsoever.” Pl.’s Br. Opp’n 6, ECF No.
25. According to Arndt, “despite the non-threatening nature of the circumstances, the [officers]
used such force with [Arndt] that he sustained substantial injuries and even required surgical
intervention.” Id. at 8.
The evidence the parties have cited in connection with Defendants’ Motion for Summary
Judgment on this claim shows the existence of a genuine dispute over the material facts bearing
on the reasonableness of the officers’ use of force. As set forth above, Arndt testified that he did
not pose a threat to the officers and offered them no resistance, but they nevertheless forcibly
twisted his arms behind his back, causing serious injury to his back and elbows. The officers
have presented a different account, according to which Arndt fought against them as they applied

7

only as much force as was necessary to restrain him. A reasonable jury could find Arndt’s
testimony to be credible or not credible and, based on this testimony, find that the officers’ use of
force under the circumstances either violated or did not violate Arndt’s Fourth Amendment
rights. Accordingly, Defendants’ motion with respect to this claim is denied.
B.

There is a genuine dispute over the material facts concerning whether Sergeant
Alercia and Officer Borst failed to intervene in violation of Arndt’s Fourth
Amendment rights.
“[A] police officer has a duty to take reasonable steps to protect a victim from another

officer’s use of excessive force.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). “If a
police officer . . . fails or refuses to intervene when a constitutional violation such as an
unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.”
Id. (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) (internal quotation marks
omitted)). “However, an officer is only liable if there is a realistic and reasonable opportunity to
intervene.” Id.
In support of their motion for summary judgment on this claim, Defendants reiterate their
contention that no excessive force was applied to Arndt; it then follows that none of the officers
had a duty to intervene to protect Arndt against such force. But, as indicated above, based on
Arndt’s testimony, a reasonable jury could find that Detective Wagner applied excessive force by
twisting and pulling Arndt’s arm in such a way as to cause serious injury; such a jury could also
find that the remaining two officers, who were standing nearby, failed to intervene to protect
Arndt against the force applied by Detective Wagner. Accordingly, Defendants’ motion with
respect to this claim is also denied.

8

C.

The officers are not entitled to qualified immunity.
Defendants contend that they are entitled to qualified immunity from Arndt’s

constitutional claims. In support of this contention they once again reiterate their claim that the
officers did not apply excessive force to Arndt.
Under the doctrine of qualified immunity, “officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
‘clearly established’ statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, because this Court has
already determined that a reasonable jury could find that the officers’ conduct violated Arndt’s
Fourth Amendment rights, the Court must now consider whether those rights were “clearly
established” at the time of the alleged wrongdoing.
“The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). On Arndt’s version of the facts, it would
have been clear to a reasonable officer that it would be unlawful, when attempting to arrest a
non-resisting and nonthreatening person, to twist and pull his arms with enough force to cause
severe back and elbow injuries. See Mehr v. Atl. City, No. CIV. 12-4499 RBK/AMD, 2014 WL
4350546, at *7 (D.N.J. Sept. 2, 2014) (“[I]t cannot be said as a matter of law that a reasonable
officer would not have known that twisting a man’s arm until his shoulder dislocated and his arm
was broken, and then continuing to tighten handcuffs to inflict greater pain, was in violation of
the Fourth Amendment, especially where this individual did not resist being placed in handcuffs
and apparently did nothing to provoke the initial physical encounter with the officer.”).
Accordingly, the officers are not entitled to qualified immunity from Arndt’s claims.

9

D.

Slatington Borough is entitled to summary judgment on Arndt’s Monell claim.
Defendants move for summary judgment on Arndt’s claims against the Borough,

contending that there are no material facts of record which would “in any way show that there is
any deliberate indifference on the part of the Borough in the training of their officers or the
actions taken on the date of the incident,” nor are there facts “to support any kind of suggestion
that any municipal policy maker had knowledge of alleged occurrences or knowledge of prior
patterns of violations of constitutional rights or specifically excessive force claims which would
place them on notice and require that reasonable steps were taken.” Defs.’ Mot. 13.
When a municipality is charged with liability for a constitutional violation pursuant to §
1983, liability can attach to the municipality only “where the municipality itself causes the
constitutional violation at issue.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)
(citing Monell v. N.Y.C. Dep’t of Soc. Serv., 436 U.S. 658, 694–95 (1978)). Thus, the
municipality cannot be held liable simply because it employs a constitutional tortfeasor.
However, a municipality may be subject to liability for a constitutional violation committed by
an employee if that “employee has not been adequately trained and the constitutional wrong has
been caused by that failure to train.” See id. at 387. Not all inadequate police training gives rise
to liability. Rather, “the inadequacy of police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” Id. at 388. “[W]hen city policymakers are on actual or
constructive notice that a particular omission in their training program causes city employees to
violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

10

Arndt contends that “there is evidence . . . that it was the practice of the Defendant
Borough to forego training schedules with respect to the use of excessive force, and . . . that the
Defendant Borough failed to discipline any of the Defendant Officers who were involved in
using excessive force against [Arndt].” Pl.’s Br. Opp’n 10. In support of this contention, Arndt
cites Detective Wagner’s testimony that he could not recall if he received any training in the use
of force in 2014 or 2015. See Pl.’s Br. Opp’n Ex. D, Wagner Dep. 47:12-48:19, ECF No. 25-5.
Arndt also cites Detective Wagner’s testimony that the police chief did not conduct an “official
interview” with him about the incident with Arndt, although the chief “read the reports and asked
[the officers] what had happened, and [the officers] explained to him what had happened that
day.” See Wagner Dep. 39:25-40:5.
Arndt has not identified any particular omission in the officers’ training program, nor has
he provided any evidence that a municipal decisionmaker was on actual or constructive notice of
any such omission. As for his contention that the Borough failed to discipline the officers after
the incident, any such failure could not have been the cause of the alleged constitutional
violation. See Beers–Capitol v. Whetzel, 256 F.3d 120, 137 (3d Cir. 2001) (“[A] successful
deliberate indifference claim requires showing that the defendant knew of the risk to the plaintiff
before the plaintiff’s injury occurred.”). Accordingly, summary judgment is granted to
Defendants on this claim.
E.

There is a genuine dispute over the material facts concerning whether the officers
committed the torts of assault and battery.
Defendants also contend they are entitled to summary judgment on Arndt’s tort claims of

assault and battery. Under Pennsylvania law, “[a] police officer may be held liable for assault
and battery when a jury determines that the force used in making an arrest is unnecessary or
excessive,” because “[t]he reasonableness of the force used in making the arrest determines
11

whether the police officer’s conduct constitutes an assault and battery.” See Renk v. City of
Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994). Because “there are genuine disputes of
material fact regarding whether Defendants’ use of force vis-à-vis Plaintiff was reasonable,” the
officers are not entitled to summary judgment on Arndt’s assault and battery claims. See Garey
v. Borough of Quakertown, No. 12–0799, 2013 WL 3305222, at *7 (E.D. Pa. July 1, 2013) (“The
question of whether an officer is liable for assault and battery under Pennsylvania law turns on
whether he or she has used an excessive degree of force, as a matter of Fourth Amendment law,
in dealing with an arrestee.” (citing Russoli v. Salisbury Twp., 126 F.Supp.2d 821, 870 (E.D. Pa.
2000))).
V.

Conclusion
For the reasons set forth above, summary judgment is awarded in favor of Defendants on

Arndt’s failure to train claims, but denied in all other respects due to genuine disputes of material
fact. A separate order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.__________
JOSEPH F. LEESON, JR.
United States District Judge

12