Ashford v. Brady et al

Filing 63

MEMORANDUM AND ORDER - IT IS ORDERED pursuant to Rule 58 of Rules of Civil Procedure that judgment be entered by the Clerk against the plaintiff and in favor of defendants Brady and Leas and that the case be closed. Signed by Magistrate Judge J. Andrew Smyser on 5/10/11. (rc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH WINSTON ASHFORD,
Plaintiff
v.
SHERIFF SHAWN BRADY and
DEPUTY SHERIFF LEAS,
Defendants

: CIVIL NO: 1:10-CV-00264
:
: (Magistrate Judge Smyser)
:
:
:
:
:
:
:
:

MEMORANDUM AND ORDER
Background.
The complaint was filed on February 4, 2010.

By Order

of May 6, 2010 (Doc. 17) all claims as to all defendants were
dismissed except for the plaintiff’s claims against defendants
Brady and Leas that these defendants used unreasonable force
against the plaintiff on March 17, 2008.

A non-jury trial was held on May 2, 2011.

The

witnesses were Kenneth Ashford, Eloise White, Shawn White,
Dennis Leas, Cyprian Igwe, David Von Kronge, Dr. Donna
Fehrenbach, Shawn Brady and John Brenneman.

Exhibits were

admitted, as indicated upon the Clerk’s Exhibit Listing.

The plaintiff has not submitted proposed findings of
fact or proposed conclusions of law.

The defendants submitted

proposed findings of fact and proposed conclusions of law (Doc.
56) prior to the trial and waived an opportunity to submit
supplemental proposed findings and conclusions after trial.

Pursuant to Rule 52 of the Federal Rules of Civil
Procedure, the material findings of fact and conclusions of law
are set forth in the following pages.

Findings of Fact.
The following facts are found based upon the evidence:

1.

On March 17, 2008 at about 3:00 a.m. Kenneth

Ashford, the plaintiff, was arrested by defendant Shawn Brady
in the alley way behind the York County Judicial Center in
York, Pennsylvania.

2.

Defendant Brady arrested the plaintiff on the basis

of evidence that the plaintiff had attempted to break into the
York County Judicial Center.

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3.

Defendant Brady effected the arrest of the

plaintiff by ordering the plaintiff to stop walking and to lie
down on the pavement.

4.

Defendant Brady displayed his baton when the

plaintiff did not comply with defendant Brady’s directive to
the plaintiff to stop walking and to lie down.

5.

When defendant Brady displayed his baton, the

plaintiff did stop walking and did lie down.

6.

Defendant Brady cuffed the plaintiff’s hands behind

his back.

7.

When the plaintiff had been handcuffed and patted

down, and after defendant Leas had arrived, defendants Brady
and Leas assisted the plaintiff to his feet by providing
support under the plaintiff’s arms to bring him to a standing
position and assisted the plaintiff in walking several steps to
be seated in defendant Brady’s patrol car.

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8.

The plaintiff does not have a personal recollection

of any use of striking force or of a punching force upon him by
defendant Brady.

9.

Defendant Brady did not punch or strike the

plaintiff in effecting the arrest of the plaintiff on March 17,
2008.

10.

Defendant Leas did not strike or punch the

plaintiff when he assisted defendant Brady in moving the
plaintiff from his supine position on the pavement to the
patrol vehicle on March 17, 2008.

11.

The plaintiff was transported by defendant Brady

to the booking area located in the Judicial Center.

12.

The plaintiff acted as though he was unconscious

when he was in the booking area.

13.

Defendant Brady asked defendant Leas, who is an

EMT, to examine the plaintiff because of the plaintiff’s
behavior.

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14.

Defendant Leas used a “sternum rub” to attempt to

heighten the state of alertness and attentiveness of the
plaintiff.

15.

A “sternum rub” consists of using the knuckles to

cause a degree of pain at the subject’s sternum area by a
vigorous and forceful rubbing of that area with the knuckles.
It causes pain at a level that is calculated to determine
whether the subject is conscious or can be brought to
consciousness.

16.

The sternum rub used by Leas on the plaintiff

succeeded in causing the plaintiff to become more alert.

The

plaintiff communicated to Leas, stating “let me sleep.”

17.

Defendant Leas removed the plaintiff’s shoes and

sweatshirt.

Defendant Leas placed shackles on the plaintiff.

18.

Defendant Leas did not slam the plaintiff into an

elevator wall.

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19.

At about 8:54 a.m. on March 17, 2008, EMTs arrived

at the booking area.

The plaintiff stated to them that the

police had beat him up.

The plaintiff complained of pain at

his chest (sternum) area.

20.

The plaintiff had observable redness at his

sternum area when he was examined by the EMTs at about 9:00
a.m. in the booking area.

21.

After the plaintiff was released on bail at 10:00

a.m. on March 17, 2008, he went to the Memorial Hospital
Emergency Room.

He was examined.

There was no evidence of

fractures or of acute intracranial pathology or of acute
inflammatory or congestive pulmonary pathology.

Discussion.
The issue whether the defendant used excessive force
against the plaintiff calls upon the court to decide whether,
in light of the facts and circumstances facing each defendant,
the actions of the defendant were objectively reasonable.
Graham v. Conner, 490 U.S. 386 (1989); Curley v. Klem, 298 F.3d
271, 279 (3d Cir. 2002).

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The threshold factual issue as to defendant Brady is
whether he used striking or punching force as the plaintiff
claims he did.

If he did not use striking or punching force,

other issues as to defendant Brady are not presented.

The

plaintiff infers from circumstances that defendant Brady used
striking and punching force upon the plaintiff.

The plaintiff

does not have a personal recollection of Brady striking or
punching him.

The plaintiff infers, from the fact that he does

not remember the events of the early morning hours of March 17,
2008 after he obeyed defendant Brady’s command to him to lie
down, that he had been rendered unconscious by an agency such
as a blow to the head.

He bases his claim that defendant Brady

used striking force against him upon also his memory that he
viewed a videotape in which he saw actions by defendant Brady
that he saw as Brady using striking force against him.

He

bases his claim upon also injuries that he considered himself
to have when, later on March 17, 2008, he went to the hospital
and stated that he had been beaten by the police.

The video recordings of the interaction between the
plaintiff and defendant Brady do not support the plaintiff’s
claim or his recollections that striking or punching force was

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used.

The medical report of Dr. Fehrenbach also does not

support his claim or his recollection.

The plaintiff was not credible in his assertion that
striking force or punching force was used against him by
defendant Brady because he does not have a personal
recollection of it, because Dr. Fehrenbach's examination did
not confirm it, because the plaintiff does not corroborate his
assertion that the use of striking force is depicted in a video
recording by producing such a recording or reasonably
explaining his inability to produce such a recording, and
because other aspects of his testimony about what occurred
during the early morning hours of March 17, 2008 caused this
fact finder to doubt his credibility.

Defendant Brady was credible in his denial of having
used either striking force or punching force.

His account was

corroborated by defendant Leas who was present shortly after
the plaintiff was on the pavement.

His account was

corroborated by Deputy Sheriff Cyprian Igwe who was also
present shortly after the plaintiff was on the pavement.

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Defendant Leas’ use of the knuckles-to-breastbone
“sternum rub” is not seen under the circumstances here
presented to have been an unreasonable use of force.

Conclusions of Law.
1.

The plaintiff did not prove by a preponderance of

the evidence that defendant Brady used unreasonable or
excessive force against the plaintiff on March 17, 2008.

2.

The plaintiff did not prove by a preponderance of

the evidence that defendant Leas used unreasonable or excessive
force against the plaintiff on March 17, 2008.

3.

Defendant Brady is entitled by law to a verdict in

his favor upon the claims of the plaintiff.

4.

The use of a sternum rub by defendant Leas to

attempt to determine whether the plaintiff was in a state of
consciousness (and feigning unconsciousness) or (if in a state
of unconsciousness) amenable to restoration to a state of
consciousness was in the circumstances presented to defendant
Leas not an unreasonable use of force.

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5.

Defendant Leas did not use force of an unreasonable

degree during his interactions with the plaintiff on March 17,
2008.

6.

Defendant Leas is entitled by law to a verdict in

his favor upon the claims of the plaintiff.

Order.
Accordingly, IT IS ORDERED pursuant to Rule 58 of Rules
of Civil Procedure that judgment be entered by the Clerk
against the plaintiff and in favor of defendants Brady and Leas
and that the case be closed.

/s/ J. Andrew Smyser
J. Andrew Smyser
Magistrate Judge

Dated:

May 10, 2011.

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