KAPEPULA v. CITY OF LANCASTER et al

Filing 33

MEMORANDUM AND/OR OPINION. SIGNED BY DISTRICT JUDGE MIA ROBERTS PEREZ ON 11/26/24. 11/26/24 ENTERED AND COPIES E-MAILED.(bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SALOME NZEBA KAPEPULA,
v.

Plaintiff,

CITY OF LANCASTER, et al.,
Defendants.

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CIVIL ACTION NO. 22-4741

Perez, J.

November 26, 2024
MEMORANDUM

Plaintiff Salome Nzeba Kapepula brings this action against Defendants City of Lancaster,
Lancaster Police Department, Officer Derek R. Kanuck, and Officer John Does 1-10 (collectively,
“Defendants”), alleging they violated her Fourth Amendment rights and state tort law when
arresting her. Pending before the Court is Defendants’ motion for summary judgment on the claims
that remain—namely, Count I (excessive force), Count II (Fourth Amendment), and Count IV
(assault and battery). For the reasons that follow, the Court grants Defendants’ motion for
summary judgment.
I.

BACKGROUND
Most of the relevant facts were captured on body camera footage. On October 2, 2021,

officers responded to a 911 call that Plaintiff was causing a disturbance at 4 S. Franklin Street in
Lancaster, Pennsylvania. ECF No. 26-1. The caller indicated that Plaintiff tried to start a fight and
was removed from the apartment but actively attempted to reenter. Id. Three officers responded to
the call, including Defendant Kanuck and Sergeant Damon Greathouse. ECF No. 26-7. Upon
arrival, the officers observed Plaintiff on the porch of the apartment with her belongings. ECF No.
26-3 at 00:55. Karen Bitzer, the lessee of the apartment, stood in the doorway with her boyfriend.

Id. Sergeant Greathouse asked Plaintiff if she had been drinking, to which Ms. Bitzer replied “yes
. . . she has been drinking.” Id. at 1:11-1:17. Sergeant Greathouse entered the apartment to speak
with Ms. Bitzer while Defendant Kanuck remained on the porch with Plaintiff. ECF No. 26-4 at
3:55. During their conversation, Ms. Bitzer explained to Sergeant Greathouse that Plaintiff is her
best friend and she recently allowed her to move in with her. ECF No. 26-3 at 4:30-5:06. After a
few incidents, she asked Plaintiff to leave and documented this request in a letter she provided the
officers. Id. at 4:30-5:06, 00:59-1:03. Sergeant Greathouse asked Ms. Bitzer if she was “willing to
be the victim of trespass.” ECF No. 26-3 at 7:05-7:13. She responded “yes.” Id. As their
conversation ended, Ms. Bitzer handed Plaintiff’s purse to Sergeant Greathouse and asked him to
give it to her. Id. at 8:36. He searched through it before exiting the apartment. Id. at 8:36-9:30.
Shortly after returning to the porch, Sergeant Greathouse grabbed Plaintiff’s right wrist and
placed a handcuff on it, to which Plaintiff responded, “why are you grabbing me?” ECF No. 26-4
at 10:18-10:26. Defendant Kanuck then quickly grabbed Plaintiff’s left arm and bent it behind her
back. Id. at 10:26. This time she yelled, “why are you grabbing me?!” Id. Defendant Kanuck held
Plaintiff’s left arm in a bent position behind her back as Sergeant Greathouse struggled to place
her right arm behind her back. Id. at 10:26-10:45. Simultaneously, Plaintiff is seen resisting the
pressure Sergeant Greathouse applied to her right arm while also bending her knees. Id. Defendant
Kanuck maintained control over Plaintiff’s left arm throughout this maneuvering. Id. Plaintiff then
yelled, “ow! that’s my arm! that’s my arm!” Id. at 10:35-10:42. A third officer began helping
Defendant Kanuck and Sergeant Greathouse place Plaintiff’s left wrist in the handcuff. ECF No.
26-7 at 6:48. Seconds later, the officers had placed both wrists in handcuffs. Id. at 6:58. This entire
interaction lasted just over 30 seconds. ECF No. 26-4 at 10:18-10:53.

After placing Plaintiff in a police vehicle, Defendant Kanuck told Sergeant Greathouse that
he heard a “pop” noise as he placed her left arm behind her back. Id. at 12:32-12:40. Sergeant
Greathouse suspected her arm was either fractured or dislocated. Id. Plaintiff was transported
directly to the hospital. Id. It was later confirmed that her left arm was fractured.
Plaintiff was charged with defiant trespass in violation of 18 Pa. Cons. Stat. Ann. §
3503(b)(1) and public drunkenness in violation of 18 Pa. Cons. Stat. Ann. § 5505. The charges
were ultimately dismissed. Now Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging
Defendants engaged in excessive force, an unreasonable search and seizure, and assault and
battery.
II.

LEGAL STANDARD
Summary judgment is properly granted when 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).
Facts are material if they “might affect the outcome of the suit under the governing law.”
Physicians Healthsource, Inc. v. Cephalon, Inc., et al., 954 F.3d 615, 618 (3d Cir. 2020). A dispute
as to those facts “is genuine if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. In support of their respective positions, parties must cite to specific parts
of the record or show that the evidence cited fails to “establish the absence or presence of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). In reviewing the evidence, this Court “view[s] all the facts in
the light most favorable to the nonmoving party and draw all inferences in that party’s favor.”
Physicians Healthsource, 954 F.3d at 618.
III.

DISCUSSION

As an initial matter, the Court acknowledges that Plaintiff withdrew her claim pursuant to
Monell v. Dept. of Social Servs., 436 U.S. 658 (1978), 1 along with her claims against Defendant
Officer John Does 1-10. See ECF 31 at 9. As such, only the claims against Defendant Kanuck
remain. Defendants argue that Defendant Kanuck is entitled to qualified immunity, mandating
dismissal of the claims against him as well. The Court agrees.
“Qualified immunity attaches when an official’s conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
White v. Pauly, 580 U.S. 73, 78–79 (2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
Therefore, the Court must assess (1) whether Defendant Kanuck violated a constitutional right,
and (2) whether the right was clearly established. Plaintiff alleges that Defendant Kanuck used
excessive force when arresting her, lacked probable cause for the arrest, and conducted an
unreasonable search. We begin with the excessive force claim.
Where an “excessive force claim arises in the context of an arrest or investigatory stop of
a free citizen, it is most properly characterized as one invoking the protections of the Fourth
Amendment.” Graham v. Connor, 490 U.S. 386, 395 (1989). The Fourth Amendment’s prohibition
against unreasonable seizures “depends not only on when [the seizure] is made, but also on how it
is carried out.” Id. As such, assessing the reasonableness of allegedly excessive force requires
consideration of the totality of the circumstances surrounding the seizure, “including the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at
396. Courts also weigh “the physical injury to the plaintiff, ‘the possibility that the persons subject

1

Municipalities and other government units “can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief.” Monell, 436 U.S. at 690. These claims are commonly referred to
as Monell claims.

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 whom the police officers must contend at one time.’” El v.
City of Pittsburgh, 975 F.3d 327, 326 (3d Cir. 2020) (quoting Sharrar v. Felsing, 128 F.3d 810,
822 (3d Cir. 1997)).
The Court finds that the potential crimes of trespass and public drunkenness are not severe.
Plaintiff is five feet tall, 110 pounds, had no weapons on her person, and did not pose any
immediate threat to the officers or anyone else at the time of arrest. ECF No. 26-11; see generally
ECF No. 26-3. Once it was clear she was under arrest, Plaintiff did not voluntarily place her hands
behind her back. ECF No. 26-4 at 10:24. It took officers approximately 30 seconds to place
Plaintiff in handcuffs, and during the process, Plaintiff screamed “ow! that’s my arm! that’s my
arm!” Id. at 10:35. Plaintiff was outnumbered by the officers three to one. ECF No. 26-7 at 6:45.
It was later determined that her left arm was fractured. ECF No. 26-11. These facts and the body
camera footage underscore that the officers could have de-escalated this entire situation. However,
notwithstanding this unfortunate reality, the evidence precludes a finding that Defendant Kanuck
used excessive force. Plaintiff resisted arrest, and rather than acquiesce to Plaintiff’s resistance,
Defendant Kanuck continued to bend Plaintiff’s arm behind her back so that Sergeant Greathouse
could place the handcuffs on her. The Supreme Court has long recognized that “the right to make
an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham, 490 U.S. at 396. The body camera footage bears out that Defendant
Kanuck did not use excessive force when arresting Plaintiff as a matter of law. Consequently,
Plaintiff’s assault and battery claim fails as well. Boyden v. Twp. of Upper Darby, 5 F. Supp. 3d

731, 744 (E.D. Pa. 2014) (explaining that a claim for excessive force is a claim for assault and
battery).
Plaintiff also asserts that Defendant Kanuck violated her Fourth Amendment rights by
arresting her without probable cause. “Probable cause exists whenever reasonably trustworthy
information or circumstances within a police officer’s knowledge are sufficient to warrant a person
of reasonable caution to conclude that an offense has been committed by the person being
arrested.” Telzer v. Borough of Englewood Cliffs, 783 F. App’x 253, 255 (3d Cir. 2019) (internal
quotation marks omitted). The probable cause analysis is based on the facts and information known
to the officer at the time of arrest. See Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir.
2005).
To assess whether an arrest was justified by probable cause, courts must examine the
elements of the crimes at issue. Id. In Pennsylvania, a person commits defiant trespass when
“knowing that he is not licensed or privileged to do so, he enters or remains in any place as to
which notice against trespass is given by actual communication to the actor.” 18 Pa. Cons. Stat.
Ann. § 3503(b)(1)(i). Here, officers responded to a 911 call that Plaintiff was trying to fight with
the caller, the caller was able to get her outside the apartment, and Plaintiff was attempting to
reenter. ECF 26-1. Shortly after the officers’ arrival, Ms. Bitzer provided the officers a copy of a
letter stating that Plaintiff could no longer stay at the apartment, effective immediately. ECF No.
26-3 at 1:01; ECF No. 26-4 at 1:55. Ms. Bitzer further explained to Sergeant Greathouse that she
allowed Plaintiff to stay there for just over a week but recently asked her to leave. ECF No. 26-3
at 4:35-6:30. Plaintiff did not deny that she was asked to leave. From the time the officers arrived
until her arrest, Plaintiff remained on the porch of the apartment. Even when viewing the facts in
the light most favorable to Plaintiff, the totality of the circumstances show that Defendant Kanuck

had a reasonable belief that Plaintiff committed the crime of defiant trespass. It is immaterial that
the charges against Plaintiff were later dismissed. Wright, 409 F.3d at 602 (“[I]t is irrelevant to the
probable cause analysis . . . whether a person is later acquitted of the crime for which she or he
was arrested.”).
Finally, to the extent Plaintiff asserts that Defendant Kanuck engaged in an unreasonable
search, the Court finds that there is no evidence that Defendant Kanuck conducted any search. The
body camera footage shows it was Sergeant Greathouse—an officer not named as a defendant in
this action—who conducted a warrantless search of Plaintiff’s purse without her consent. ECF No.
26-3 at 8:35. Because Plaintiff’s counsel did not name Sergeant Greathouse as a defendant,
Plaintiff is left without redress for this intrusion on her right to privacy. Indeed, rather than add
Sergeant Greathouse as a defendant post-discovery, Plaintiff chose to withdraw all claims against
Officer John Does 1-10. This poor tactical decision eliminated the only remaining path to Plaintiff
establishing a Fourth Amendment violation. As such, the Fourth Amendment claims fail as a
matter of law.
IV.

CONCLUSION
Plaintiff’s lack of constitutional violation not only insulates Defendant Kanuck from

liability under the qualified immunity doctrine, but it also independently mandates dismissal of
her claims. For these reasons, the Court grants Defendants’ motion for summary judgment. An
appropriate order follows.