Korth v. Estate of Mark Botts et al
Filing
64
MEMORANDUM re MOTION for Summary Judgment 48 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/16/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY L. KORTH,
Plaintiff
vs.
JILL HOOVER, individually and in her
official capacity; JOSEPH R. BAKER,
individually and in his official capacity;
and OLIVER TOWNSHIP,
Defendants
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: CIVIL NO. 1:CV-15-2422
:
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(Judge Caldwell)
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MEMORANDUM
I.
Introduction
Plaintiff, Gary L. Korth, filed this civil-rights action under 42 U.S.C. § 1983
accompanied by state-law claims. The suit arises from an alleged assault on Plaintiff
committed by a police officer, Mark Botts, now deceased, employed by Oliver Township.
Korth named as defendants the Township and two of its supervisors, Jill Hoover and
Joseph Baker. At the time of the alleged assault, Plaintiff was visiting the Township
Municipal Building and making a complaint to Hoover about Botts.
After a series of procedural rulings, Hoover is the only defendant left in the
case and on only two claims, a Fourth Amendment claim for use of excessive force and a
state-law claim for assault and battery. We are considering her motion for summary
judgment.
II.
Procedural History
Plaintiff filed this action in state court, and it was removed here by
Defendants. In response to a motion to dismiss the original complaint, Plaintiff filed an
amended complaint. In the amended complaint, Plaintiff presented seven causes of
action: (1) a Fourth Amendment excessive-force claim against Hoover and Baker; (2) a
federal civil-rights supervisory-liability claim against Hoover and Baker for the injuries
Botts inflicted by way of the deficient policies and practices they implemented; (3) a
federal civil-rights municipal-liability claim against the Township for the injuries Botts
inflicted based on deficient policies, practices, and customs; (4) a federal substantive due
process claim against all three defendants for Botts’ conduct; (5) a claim against all three
defendants under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the
Fourth Amendment; (6) a state-law claim against all the defendants for assault and
battery; and (7) a state-law claim against all defendants for negligence.
Defendants filed a motion to dismiss the amended complaint. In a
memorandum detailing the pertinent allegations of the amended complaint, we ruled as
follows, in relevant part. The Fourth Amendment excessive-force claim could proceed
against Hoover but not against Baker, based on Hoover’s direct personal involvement
with the assault. The federal civil-rights supervisory-liability claim against Hoover and
Baker was dismissed because Plaintiff failed to allege sufficient facts showing they had
implemented deficient policies or customs that caused Plaintiff’s injuries. The federal
civil-rights municipal-liability claim against the Township was dismissed because Plaintiff
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failed to allege sufficient facts showing it had implemented deficient policies, practices,
and customs that caused Plaintiff’s injuries. The federal substantive due process claim
was dismissed because Plaintiff’s civil-rights claim was covered by the Fourth
Amendment, not the Fourteenth Amendment. The Pennsylvania constitutional claim was
allowed to proceed for injunctive relief but not for damages. The state-law claim for
assault and battery was allowed to proceed against Hoover but not against the Township
or Baker. The state-law claim for negligence was dismissed based on a state-law grant
of immunity. See Korth v. Hoover, 190 F. Supp. 3d 394 (M.D. Pa. 2016).
Plaintiff filed a second amended complaint. In that pleading, Plaintiff set
forth five causes of action. In Count 1, he made a Fourth Amendment claim against
Hoover and Oliver Township for Botts’ use of excessive force. In Count 2, he made a
supervisory-liability claim against Hoover and Baker. In Count 3, he made a municipalliability claim against Oliver Township. In Count 4, a repeat of the amended complaint’s
Count 5, he made a claim under the Pennsylvania Constitution, Art. I, § 8, against all
three defendants for unspecified injunctive relief. In Count 5, he made a claim for assault
and battery against Hoover.
Defendants filed a motion to dismiss, which sought dismissal of Count 1 as
against the Township, and dismissal of Counts 2 and 3. They argued that Plaintiff had
once again failed to adequately allege supervisory or municipal liability based on policy or
custom. They did not move to dismiss Counts 4 or 5. We granted the motion. Korth v.
Hoover, 2016 WL 5719834, at *3 (M.D. Pa. Oct. 3, 2016).
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As a result, the remaining claims were: (1) Count 1 against Hoover for her
direct personal involvement in the excessive force used by Botts; (2) Count 4, a claim
under the Pennsylvania Constitution, Art. I, § 8, against all three defendants for
unspecified injunctive relief; and (3) Count 5, a state-law claim for assault and battery
against Hoover.
Defendants filed an answer to the second amended complaint on October
24, 2016. Thereafter, they filed a “motion for a protective order and/or order clarifying
remaining claims.” The motion requested that we “strik[e] any remaining claims for
injunctive relief” and that we dismiss Oliver Township and Joseph Baker from the action.
The request to strike the claims for injunctive relief was essentially directed at Count 4 of
the second amended complaint, the count seeking unspecified injunctive relief against
the three defendants under the Pennsylvania Constitution, Art. I, § 8, the state
counterpart to the Fourth Amendment. We treated the motion as one for judgment on the
pleadings and granted it. Korth v. Hoover, 2017 WL 2653151 (M.D. Pa. Jun. 20, 2017).
There is thus left for resolution only two claims and against only one
defendant -- Hoover. The claims are a federal claim for use of excessive force under the
Fourth Amendment and a state-law claim for assault and battery. As noted, Hoover has
moved for summary judgment on the claims.
III.
Standard of Review
Fed. R. Civ. P. 56 governs the grant of summary judgment. The moving
party is entitled to summary judgment if she “shows that there is no genuine dispute as to
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any material fact and the movant is entitled to judgment as a matter of law.” Rule 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.” Pearson v. Prison Health Serv., 850 F.3d 526,
534 (3d Cir. 2017)(citation omitted).
In pertinent part, parties moving for, or opposing, summary judgment must
support their position by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “The non-moving
party cannot rest on mere pleadings or allegations,” El v. Southeastern Pennsylvania
Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but “must set forth specific facts
showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228,
231-32 (3d Cir. 2001). “To survive summary judgment, a party must present more than
just ‘bare assertions, conclusory allegations or suspicions . . . .’” Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005)(cited case omitted). “‘[C]onclusory, self-serving
affidavits are insufficient to withstand a motion for summary judgment.’” Blair, Kirleis v.
Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)(cited case omitted).
We “must view all evidence and draw all inferences in the light most
favorable to the non-moving party” and we will only grant the motion “if no reasonable
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juror could find for the non-movant.” Lawrence v. City of Phila., 527 F.3d 299, 310 (3d
Cir. 2008).
IV.
Background
The following is the record for the purposes of defendant Hoover’s motion
for summary judgment, based on her statement of undisputed material facts, Plaintiff’s
counter-statement, and the evidence the parties have submitted in support. We will
sometimes borrow the parties’ language without attribution. When we cite to only one
party’s statement, or counter-statement, of material fact, we do so because the other
party has admitted the relevant statement.
Plaintiff, Gary L. Korth, is an adult individual who, at all relevant times,
resided in Newport, Oliver Township, Perry County, Pennsylvania. (Doc. 50, Defendant’s
statement of undisputed material facts (DSMF) ¶ 1). Oliver Township is a second class
township under Pennsylvania law. (Id. ¶ 2).
The Oliver Township Municipal Building consists of a public meeting area,
and offices and/or work spaces for the Township secretary/treasurer and sewer authority
secretary. (Id. ¶ 4). The Municipal Building also houses the office for the police
department. (Id. ¶ 5). On July 18, 2013, the date of the alleged assault, the police
department consisted of a single, part-time police officer, Sergeant Mark R. Botts. (Id. ¶
6).
Defendant Hoover is employed by Oliver Township as its
secretary/treasurer. (Id. ¶ 8). This is an hourly job she has held since 2000. (Id).
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Hoover is also a Township supervisor, first elected in 2012. (Id. ¶ 10). As a supervisor,
she is paid a monthly stipend of $125, if she attends the monthly supervisors’ meeting.
(Doc. 48-3, ECF p. 6, Hoover Dep.). In her view, she does not do supervisor-type work
unless they are at their regular monthly meeting. (Id., ECF p. 10). If approached by a
resident, she will, however, act like a supervisor, listen to the resident’s concern, but
handle it at a meeting. (Id. at ECF p. 10-11). The Board would be able to discuss
allegations of police misconduct, (id., ECF p. 18), although she has never received an
allegation of police misconduct until Plaintiff made one about Botts. (Id.).
At all times relevant hereto, the Oliver Township Board of Supervisors
consisted of Hoover, Baker, and Ralph Lesh, III. (Doc. 50, DSMF ¶ 9). The Board of
Supervisors supervised Botts at the time of the alleged assault. (Doc. 48-3, ECF pp. 68,
75, Hoover Dep.). The Board was also in charge of disciplining Botts. (Id., ECF p. 71).
Before the alleged assault, Plaintiff expressed concern about how the
Township was paying bills. He did not think the Township was conducting business the
way everyone else did. (Doc. 48-2, ECF pp. 43-44, Korth Dep.). He also made
complaints about Botts’ alleged misconduct to the Township supervisors. (Doc. 50,
(DSMF ¶ 12). None of the complaints against Botts concerned the use of excessive
force. (Id. ¶ 13).
Plaintiff gives the following account of the altercation that is the basis of this
action. On July 18, 2013, he went to the Municipal Building to examine some of the
Township’s bills and invoices. (Doc. 48-2, ECF p. 45, Korth Dep.). Hoover was working
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that day.1 He entered Hoover’s office and asked her if she thought evidence he had
previously presented against Botts warranted an investigation of Botts. She replied that
Plaintiff was “not the fourth supervisor.” (Doc. 48-2, ECF p. 47, Korth Dep.). He also
asked if she thought Botts should be suspended pending further investigation. (Id., ECF
p. 51).
Then Botts came in and got right in Plaintiff’s “face,” saying that Plaintiff
was “in my space.” (Id., ECF p. 52). Plaintiff replied that Botts was “in my space.” (Id.).
Botts and Plaintiff were standing close together. (Id., ECF p. 53). Hoover then stood
beside them and told Plaintiff he “need[ed] to leave.” (Id.). Plaintiff told Hoover that Botts
needed to go to his office and that Plaintiff was conducting business for the Township.
(Id.). He told Botts as well that he was conducting business and that Botts had to go
back to his office. (Id., ECF p. 54).
There was no further discussion between Plaintiff and Hoover, (id., ECF p.
53), although she did say she was calling the state police. (Id., ECF p. 54).2 “She turned
her back and went to the phone. And from that point to the end her back was turned.”
(Id.).
Botts told him to “get out,” and before Plaintiff could respond, Botts “was
hitting him very hard in the chest area forcing [him] out the door” to the hallway, about
1
According to Hoover, she was working in her capacity as the township’s
secretary/treasurer. (Doc. 48-3, ECF pp. 9-10, Hoover Dep.).
2
According to Hoover, Botts asked her to call the state police. (Doc. 48-2, ECF p. 45,
Hoover Dep.).
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fifteen feet away. (Id., ECF pp. 54-55). Botts was “pushing” him and after the first push,
Plaintiff yelled at Hoover “your officer is assaulting me,” and he kept saying that, and
Botts kept assaulting him. (Id., ECF p. 55). Plaintiff asked her for help at least three
times. (Id., ECF p. 58)
Plaintiff knows he was kneed one time in the groin area and was also
shoved. As a result of Botts’ actions, Plaintiff also hit the wall in the hallway. He did not
fall to the floor but was caught by the wall. When he stood up, he was hit again, the door
opened, and he fell out. (Id., ECF p. 55). There were “numerous” contacts between
Plaintiff and Botts before Plaintiff got to the door. (Id., ECF p. 59). Plaintiff does not
know if Botts used his hands. Botts “was using anything and everything” to hit Plaintiff.
(Id., ECF p. 60).
As soon as Hoover had turned her back, Botts hit Plaintiff “with all his
force.” (Id., ECF p. 56). “She did nothing to stop him. She said nothing.” (Id.). During
the assault, there was no communication between Hoover and Botts. (Id., ECF p. 70).
Plaintiff thinks he was hit the first time with a shoulder; “it got [him] right in the center.”
(Id., ECF p. 56). Then Plaintiff went backwards. He did not fall but it was like a
continuous assault. (Id., ECF p. 57). Plaintiff thinks he was hit numerous times before
Hoover even got to the phone. “And she never once when [he] yelled for help looked
back. She ignored [him] a hundred percent.” (Id.).
Hoover did call the state police. (Id., ECF p. 58). At that point, Plaintiff
was out in the hallway, and he told her to tell them not to send a car, that he was on his
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way. (Id., ECF pp. 58-59). Plaintiff has no idea how long the incident took, but it
happened “quickly.” (Id., ECF pp. 69-70).3
After leaving the building, Plaintiff drove himself to the Pennsylvania State
Police. (Doc. 50, DSMF ¶ 31). State Police Trooper Ryan French investigated the
incident. As part of his investigation, he interviewed all witnesses. (Id. ¶ 32). During his
interview with Korth, Trooper French does not recall Plaintiff saying he was injured or
needed medical attention. He did not appear injured to the Trooper. The Trooper does
not recall that he complained about any pain. (Doc. 48-4, ECF p. 8, French Dep.).
Plaintiff seemed more concerned about Botts and dealings within the Township. (Id.).
Plaintiff testified that he told the Trooper he was not feeling good and was having chest
pains. (Doc. 48-2, ECF p. 91, Korth Dep.).
After his interview with the Trooper, Plaintiff left the State Police barracks so
he could drive his wife to where she could get a ride to work. (Doc. 50, DSMF ¶ 36).
Later that night, Plaintiff drove himself to the Holy Sprit Hospital Emergency Department.
(Id. ¶ 37). Plaintiff presented with chest pains. (Id. ¶ 39). After not being able to wait
anymore, Plaintiff left the Emergency department without being seen. (Id. ¶ 40). The next
day Plaintiff called the Holy Spirit Patient Advocate and complained about how he was a
3
Hoover has a different version of events. She had asked Plaintiff to leave after he
said she and Botts should watch their backs. (Doc. 48-3, ECF pp. 43-44, 45, Hoover Dep.).
Botts also asked him to leave. He refused. (Id., ECF p. 45). Botts asked her to call the state
police. (Id.). Then the altercation began. She watched it. (Id., ECF pp. 44-45). Plaintiff was
not struck in the chest and groin area. (Id., ECF p. 29). Neither Plaintiff nor Botts put their
hands on each other. (Id.). “They used their bodies. They bumped bellies.” (Id.). They made
no contact with their feet. (Id., ECF p. 47).
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“heart patient” and had been made to wait the night before. The Patient Advocate
purportedly advised Plaintiff to call an ambulance to bring him to the hospital. (Id. ¶ 41).
Plaintiff returned to Holy Spirit Hospital the following day; his complaint was
chest pains. (Id. ¶ 42). The Emergency Department history and physical medical record
from July 19, 2013, document complaints of chest pain with no other complaints. Of
note, the records do not note any bruising. (Id. ¶ 43). A Consultation Report from July
19, 2013, . . . noted a two- to three-week history of chest discomfort. His symptoms
became worse the day before when he has an emotional altercation with someone. He
denied chest wall trauma. Physical examination did not reference bruising. (Id. ¶ 44).
Plaintiff was in the hospital for monitoring for three days, or until July 21, 2013. (Id. ¶ 45).
Plaintiff alleged he had quite a bit of bruising in the groin area after the altercation. (Doc.
48-2, ECF p. 100, Korth Dep.).
V.
Discussion
A. The Fourth Amendment excessive force claim fails
because Hoover was not Botts’ supervisor and hence
Plaintiff cannot establish Hoover’s requisite personal
involvement in the assault
Asserting that Hoover was Botts’ supervisor, Plaintiff makes a Fourth
Amendment excessive force claim against Hoover for Botts’ assault upon him. Personal
involvement in the alleged wrongs is necessary for the imposition of liability in a civil
rights action. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Sutton v. Rasheed,
323 F.3d 236, 249-50 (3d Cir. 2003); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
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1988). Liability cannot be imposed on the basis of respondeat superior. Evancho, 423
F.3d at 353. One way of showing personal involvement by a supervisory official is
broken down by the Third Circuit as follows. The supervisor can (1) participate in
violating the plaintiff's rights; (2) direct others to violate them; or (3) as the person in
charge, know of and acquiesce in the subordinate's unconstitutional conduct. Barkes v.
First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom.
Taylor v. Barkes,
U.S.
, 135 S.Ct. 2042 (2015).4
“But where actual supervisory authority is lacking, mere inaction, in most
circumstances, does not reasonably give rise to a similar inference [of acquiescence]. As
a general matter, a person who fails to act to correct the conduct of someone over whom
he or she has no supervisory authority cannot fairly be said to have “acquiesced” in the
latter's conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). “[A]nd a higher-ranked individual does not
necessarily have supervisory authority over a lower-ranked employee.” Jennings-Fowler
v. City of Scranton, 680 F. App’x 112, 118 n.23 (3d Cir. 2017) (nonprecedential) (citing
Robinson, 120 F.3d at 1294). If supervisory authority is lacking, or “there is no state law
duty to control the actions of the primary actor,” Jankowski v. Lellock, 649 F. App’x 184,
4
A second way of showing personal involvement of a supervisory official is to show, in
part, that the official established and maintained a policy, practice or custom that directly
caused the constitutional harm. Barkes, 766 F.3d at 316. In the instant case, Plaintiff has
failed in two attempts to rely on this way of showing personal involvement. Korth, 190 F.
Supp. 3d at 405; Korth, 2016 WL 5719834, at *3.
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187 (3d Cir. 2016)(nonprecedential), there is no need to go any further and determine if
the defendant’s conduct meets either of the two ways a supervisor can be personally
involved in a civil-rights violation. Id.
Here, Defendant argues she was not a supervisor of Botts for two reasons.
First, at the time of the altercation, she was working as the Township’s
secretary/treasurer, an hourly employee who had no supervisory role over the
Township’s police department or officers. Second, under Pennsylvania law, power over a
second class township police department is vested in its Board of Supervisors. See 53
Pa. Stat. Ann. § 66901 (“The board of supervisors may by resolution create or disband a
police force within the township or, upon the petition of not less than twenty-five
registered electors or taxpayers of the township, appoint police officers.”). Defendant
argues that when authority is vested in the board of supervisors, “a single township
supervisor may not unilaterally take action.” (Doc. 49, Def.’s Br. in Supp. at ECF p. 22).
In support, she cites Heller v. Fulare, 454 F.3d 174, 178 (3d Cir. 2006), and its citation to
53 Pa. Stat. Ann. § 66902. Section 66902 provides, in part, that the board of supervisors
of a second class township “shall provide for the organization and supervision and
determine the number and the compensation of the police officers.”
In her reply brief, she also cites cases where the courts have determined
that an individual board member cannot be held liable when authority was vested in the
board as a whole. See Dewees v. Haste, 620 F. Supp. 2d 625, 641-42 (M.D. Pa.
2009)(individual member of a county salary board could not be found liable for the
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plaintiff’s discharge when authority to fire was in the board alone); Bangor Area Educ.
Ass’n v. Angle, 720 A.2d 198, 201 (Pa. Commw. Ct. 1998)(individual school board
member lacked authority to examine teachers’ personnel files when such authority was
vested solely in the school board); Kuzel v. Krause, 658 A.2d 856, 860-61 (Pa. Commw.
Ct. 1995)(“Commissioner Krause alone cannot be held liable for the act of the Township
Board of Commissioners in terminating Employees for any reason. An individual
Township Commissioner alone has no authority; he or she is just one member of the
Board of Commissioners and has no power alone to take any action unless a majority of
the Board of Commissioners, acting as a body, does so.”).
We agree with Defendant that she cannot be liable on the excessive force
claim because she was not Botts’ supervisor at the time of the altercation. There is
nothing in the record establishing that individual supervisors were given supervisory
authority over Botts; there is only the statutory authority conferred on the board of
supervisors to “provide for the organization and supervision . . . of . . . police officers.”
Without supervisory authority, Hoover cannot be liable for Botts’ actions. See Dewees,
supra; Kuzel, supra.
In opposition, Plaintiff first argues that Hoover was Botts’ supervisor
because she is a member of the Board of Supervisors, which supervised Botts and had
authority to discipline him. We disagree. As noted above, being a member of the board
is not enough to establish supervisory status.
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Plaintiff next argues that there is evidence that Hoover either participated
directly in violating Plaintiff’s rights or knew of and acquiesced in Botts’ violations of his
constitutional rights. We see no evidence of direct participation. According to Plaintiff’s
own testimony, Hoover did not get involved in the altercation in any way -- which
happened quickly. She did not order Botts to stop, but she had no supervisory authority
over him.
As for evidence dealing with knowledge and acquiescence, Plaintiff relies
on Hoover’s knowledge of other complaints made against Botts. There were complaints
in another county that he had been handing out business cards for a men’s club. Neither
Hoover nor the Board investigated these “rumors.” Hoover said she did not because she
received no formal complaint. (Doc. 48-3, ECF pp. 20-21, Hoover Dep.). There was also
complaints Plaintiff made about two days before the altercation when Plaintiff told Hoover
that Botts was being investigated by the district attorney and requested that Botts be
fired. (Id., ECF p. 24). Hoover did nothing except to advise Plaintiff to talk to the district
attorney or the Pennsylvania State Police. (Id., ECF p. 25).
Plaintiff argues that knowledge of these complaints and Hoover’s failure to
do anything about them establishes her personal involvement in Botts’ conduct. But we
fail to see the connection. Plaintiff’s argument, although couched as one dealing with
personal involvement, appears to be an attempt to resurrect a claim that Hoover is liable
because she established and maintained a policy, practice or custom that directly caused
the constitutional harm. We reject this claim in part for the same reason we did so in
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connection with Defendants’ two motions to dismiss; none of them deal with claims of
excessive force. See Korth v. Hoover, 2016 WL 5719834, at *3 (“None of these
allegations deal with excessive force . . . We advised Plaintiff when granting him leave to
amend that the previous conduct had to be similar to the conduct that caused his
injuries.”).
We therefore conclude that Hoover is entitled to summary judgment on the
excessive force claim.5
B. Hoover did not commit assault and battery
“In Pennsylvania, ‘[a]ssault is an intentional attempt by force to do an 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.’” Sanford
v. O’Rourke, No.06-CV-739, 2008 WL 2550882, at *16 (M.D. Pa. Jun. 23, 2008)(quoting
Rank v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).
We permitted the assault and battery claim to proceed on the theory “that a
person need not have committed the assault and battery herself; she can still be held
liable if she was present for the assault and provided instruction and encouragement to
5
Hoover also argues she is entitled to qualified immunity. However, since the
excessive force claim against her is meritless, we see no need to decide the qualified
immunity issue.
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the principal actor.” In support, we cited Gallagher v. Green, No. 12–CV–3840, 2014 WL
4954833, at *10 (E.D. Pa. Oct. 2, 2014). See Korth v. Hoover, 190 F. Supp. 3d at 409.6
Hoover moves for summary judgment on this claim by pointing out there is
no evidence that she instructed or encouraged Botts to commit the assault and battery.
We agree. Plaintiff’s own testimony is that Hoover went to the phone to call the state
police and kept her back turned throughout the entire incident.
In opposition, Plaintiff asserts that Hoover’s presence at the scene, her
status as a board member making her Botts’ superior, and her failure to stop Botts along
with her willingness to follow his orders encouraged him in the assault and battery.
We disagree. First, Hoover, as an individual, was not Botts’ superior.
Second, the evidence cannot be interpreted in the way Plaintiff does. We believe the
record shows that Hoover did not instruct or encourage Botts in his actions. Hoover is
6
We also noted that Plaintiff did not allege that Hoover affirmatively encouraged Botts
but we thought that such affirmative conduct was not necessary for a supervisory official who
was present while a subordinate assaulted someone. Id. However, we now know that Hoover
was not Botts’ supervisor.
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therefore entitled to summary judgment on the claim of assault and battery.7
We will issue an appropriate order.8
/s/William W. Caldwell
William W. Caldwell
United States District Judge
Date: October 16, 2017
7
Based on this ruling, we need not consider Hoover’s arguments that she is immune
under the Pennsylvania Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541, 8545, or that she
has high official immunity under the common law.
8
Hoover has also moved for summary judgment on the claim for punitive damages but
because punitive damages were requested as part of the two claims on which she has
prevailed, we see no need for a separate ruling denying a claim for punitive damages.
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