Leone v. Towanda Borough et al

Filing 60

MEMORANDUM (Order to follow as separate docket entry) re 46 MOTION for Summary Judgment filed by Andrew Burian, Scott Refner, Thad Warnick, Matthew Knock, Roger Stipcak. Signed by Honorable A. Richard Caputo on 1/6/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT LEONE,
CIVIL ACTION NO. 3:CV-12-429

Plaintiff,

(JUDGE CAPUTO)

v.
CORPORAL ROGER STIPCAK,
TROOPER SCOTT RENFER, TROOPER
ANDREW BURIAN, TROOPER
MATTHEW KNOCK, and TROOPER
THAD WARNICK,
Defendants.

MEMORANDUM
Presently before the Court is Defendants Corporal Roger Stipcak (“Stipcak”), Trooper
Scott Renfer (“Renfer”), Trooper Andrew Burian (“Burian”), Trooper Matthew Knock
(“Knock”), and Trooper Thad Warnick’s (“Warnick”) (collectively, “Defendants”) Motion for
Summary Judgment. (Doc. 46.) Plaintiff Robert Leone (“Leone”) contends that Defendants
violated his Fourth Amendment rights and committed state law torts during a series of
events relating to the use of force that began on the evening of March 8, 2010 and
continued into the following morning. Because there are disputed material issues of fact
regarding whether the use of force against Leone was objectively reasonable, Defendants’
motion for summary judgment on the Fourth Amendment claim will be denied. Furthermore,
because factual issues exist as to whether Defendants’ actions were actuated by an intent
to serve their employer and/or whether the use of force was expected by their employer
during the events relevant to this litigation, Defendants’ motion for summary judgment on
the state law claims will also be denied.

I. Background
A.

Factual Background
On March 8, 2010, Leone took the T-tops off his Trans Am and decided to go for a

drive. (Doc. 47, Defendants’ Statement of Material Facts, “Defs.’ SMF”, ¶ 4; Doc. 54,
Plaintiff’s Statement of Material Facts, “Plf.’s SMF,” ¶ 4.) Leone suffered from a mental
illness prior to that day, and he continues to suffer from the symptoms of mental illness.
(Defs.’ SMF, ¶ 7; Plf.’s SMF, ¶ 7.) On his drive, Leone made stops at an observatory and
a store. After stopping at the store, Leone proceeded to drive through Pennsylvania for
approximately two and a half or three hours. (Defs.’ SMF, ¶¶ 5-6, 11; Plf.’s SMF, ¶¶ 5-6,
11.)
At some point thereafter, Kelly Murray (“Murray”) was stopped at a stoplight when
she contends that Leone’s vehicle side-swiped her automobile. (Defs.’ SMF, ¶¶ 12-13; Plf.’s
SMF, ¶¶ 12-13.) Leone disputes that he side-swiped Murray’s automobile. (Id.) Although
Leone gave a statement to his insurer that he struck Murray’s automobile, he contends that
he was pressured to admit to it so that the insurer would pay the claim. (Leone Dep., 221:214.) Leone, however, was ultimately convicted of one count of accident involving damage
to attended vehicle in the Court of Common Pleas of Bradford County. (Defs.’ SMF, ¶ 19;
Plf.’s SMF, ¶ 19.)
Murray proceeded to follow Leone’s vehicle, and she also contacted the State Police.
(Defs.’ SMF, ¶ 13; Plf.’s SMF, ¶ 13.) Renfer, Warnick, and Burian were notified of the hitand-run, and they got in their vehicles and proceeded to Leone’s location along Route 6.
(Defs.’ SMF, ¶¶ 14-16, 21-23; Plf.’s SMF, ¶¶ 14-16; 21-23.) The troopers pulled behind
Leone’s vehicle with their lights and sirens activated. (Defs.’ SMF, ¶ 24; Plf.’s SMF, ¶ 24.)
Leone noticed the flashing lights of the police vehicles behind him, but he was scared
because he had just gotten his license back, was on probation for a DWI, and restrictions

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on his license provided that he was not to drive outside of Broome County, New York.
(Defs.’ SMF, ¶ 28; Plf.’s SMF, ¶ 28.)
Leone did not stop for the police, and he instead continued driving for approximately
thirty minutes at speeds between twenty and fifty miles per hours. (Defs.’ SMF, ¶¶ 31-32;
Plf.’s SMF, ¶¶ 31-32.) The troopers in pursuit unsuccessfully attempted to pull in front of
Leone’s vehicle and conduct a rolling roadblock. (Defs.’ SMF, ¶¶ 38-40; Plf.’s SMF, ¶¶ 3840.)
Stipcak was the patrol supervisor on March 8, 2010. He, along with Knock, deployed
tire deflating spike strips along Route 6 in an attempt to stop Leone’s vehicle. (Defs.’ SMF,
¶¶ 36-37, 44; Plf.’s SMF, ¶¶ 36-37, 44.) After the spike strips failed to stop Leone’s vehicle,
Stipcak joined the pursuit in his vehicle, while Knock got into Towanda Borough Police
Officer Lantz’s vehicle. (Defs.’ SMF, ¶¶ 45-48; Plf.’s SMF, ¶¶ 48.) The pursuit was captured
on the Mobile Video Recordings (“MVR”) for Cars # 5, 6, 8, and 18. (Defs.’ SMF, Exs. E, H,
I, M.)
Thereafter, Stipcak decided to take Leone off the road, and he caused Leone’s
vehicle to spin out and come to a stop along the southern edge of the roadway. (Defs.’
SMF, ¶¶ 49-53; Plf.’s SMF, ¶¶ 49-53.) Leone felt the vehicle spin wildly, and he was jerked
around and slammed against the inside of the door. (Defs.’ SMF, ¶ 54; Plf.’s SMF, ¶ 54.)
Renfer pulled his vehicle in front of Leone’s, exited, and drew his sidearm. (Defs.’
SMF, ¶ 55; Plf.’s SMF, ¶ 55.) Stipcak’s vehicle stopped in a position that prevented both
Leone and himself from opening their doors. (Defs.’ SMF, ¶ 57; Plf.’s SMF, ¶ 57.) Warnick
stopped his vehicle approximately fifteen to twenty feet away from Leone’s vehicle. (Defs.’
SMF, ¶ 58; Plf.’s SMF, ¶ 58.) Burian pulled his vehicle around Stipcak’s vehicle and parked.
(Defs.’ SMF, ¶ 59; Plf.’s SMF, ¶ 59.) Burian exited his vehicle with a loaded shotgun and
pointed it at Leone as a cover officer. (Defs.’ SMF, ¶ 60; Plf.’s SMF, ¶ 60.)

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Stipcak and Leone were eye to eye through the windshields of their vehicles, and
Stipcak exited his vehicle through the window and climbed onto the hood of the Trans Am.
(Defs.’ SMF, ¶¶ 61-62; Plf.’s SMF, ¶¶ 61-62.) From there, Stipcak was able to see Leone
clearly because the T-tops were off the Trans Am. (Defs.’ SMF, ¶ 64; Plf.’s SMF, ¶ 64.) The
troopers began giving Leone commands to put his hands up and exit the vehicle. (Defs.’
SMF, ¶ 65; Plf.’s SMF, ¶ 65.)
The parties largely dispute the circumstances as to how the following events
unfolded. According to Defendants, Leone did not respond to commands, sat in his vehicle
smoking a cigarette, made no attempt to reach for his door handle or open his car door, did
not put his hands in the air, did not attempt to climb out through the opened roof, and did
not acknowledge Stipcak’s presence. (Defs.’ SMF, ¶¶ 66-72.) Leone, conversely, contends
that the scene was noisy, he was unable to exit his vehicle, the instructions came very
quickly, he was not instructed to get out of the car through the roof, and he did not know
how he could surrender at that time. (Plf.’s SMF, ¶¶ 66-72.)
At that point, Stipcak deployed his taser for five seconds, (Defs.’ SMF, ¶ 75; Plf.’s
SMF, ¶ 75), striking Leone in the chest. (Leone Dep., 93:1-16.) While Stipcak and Burian
testified that the taser made a good connection, Leone contends that the taser failed to
effectively connect. (Defs.’ SMF, ¶ 74; Plf.’s SMF, ¶ 74.)
After he was tased, Defendants contend that Leone still did not respond to
commands. (Defs.’ SMF, ¶ 77.) Leone, however, maintains that he was not given clear
instructions or an adequate amount of time to respond. (Plf.’s SMF, ¶ 77.) Stipcak then
squeezed the taser trigger again. (Defs.’ SMF, ¶ 78; Plf.’s SMF, ¶ 78.)
Knock approached the door of Leone’s vehicle and entered. (Defs.’ SMF, ¶ 79; Plf.’s
SMF, ¶ 79.) Defendants contend that Knock told Leone to exit the vehicle, but he held onto
the steering wheel and was throwing his arms in the air trying to pull away. (Defs.’ SMF, ¶¶

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82-84.) According to Knock, Leone put his hands in the air, swinging at him. (Defs.’ SMF,
¶ 86.) Leone, conversely, disputes that he swung at Knock or that Knock provided verbal
instructions. Rather, Knock was attempting to unbuckle Leone’s seatbelt and began
punching him. (Plf.’s SMF, ¶¶ 82-84, 86.) Knock contends that he punched Leone with a
closed fist strike to the face at that time, while Leone testified that he was punched multiple
times by Knock. (Defs.’ SMF, ¶ 88; Plf.’s SMF, ¶ 88.) Renfer also punched Leone multiple
times in the face. (Defs. SMF, ¶ 89; Plf.’s SMF, ¶ 89.)
Leone was then pulled from the vehicle and brought to the ground head first. (Defs.’
SMF, ¶ 90; Plf.’s SMF, ¶ 90.) According to Defendants, Leone was fighting with the
troopers and preventing them from getting his arms behind his back, while Leone testified
that he was being punched and kicked while he was on the ground. (Defs.’ SMF, ¶¶ 92-95;
Plf.’s SMF, ¶¶ 92-95.) Stipcak testified that he then initiated the taser again, (Defs.’ SMF,
¶ 97), before leaping from the hood of the Trans Am. While Stipcak testified that he landed
on someone’s legs or feet, Leone contends that Stipcak landed on his ribs. (Defs.’ SMF, ¶¶
100-101; Plf.’s SMF, ¶¶ 100-101.)
Stipcak testified that he then squeezed the taser trigger again, and he, Burian, and
Renfer got caught in the wires. (Defs.’ SMF, ¶¶ 110-112.) Leone testified that he was tased
six to eight times at the scene along Route 6, while the taser report indicates that the taser
was deployed five times during the one minute and three second span between 9:03:26 and
9:04:29. (Defs.’ SMF, ¶¶ 114-115.) Eventually, Burian was able to gain control of Leone’s
right arm and put a handcuff on it. (Defs.’ SMF, ¶ 117; Plf.’s SMF, ¶ 117.) Leone was then
walked to the patrol vehicle. Leone testified that he was placed next to the vehicle, (Plf.’s
SMF, ¶¶ 130-131), while Defendants contend that he was placed in Car # 5 at that time.
(Def.’s SMF, ¶ 131.)
The events occurring from the time where the troopers exited their vehicles until

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Leone was walked towards Car #5 were captured by the MVR for that vehicle. (Defs.’ SMF,
Ex. I.) However, it is not clear from the MVR for Car #5 whether Leone was placed in the
car at that time, as he was no longer in view of the camera. From that point in time forward,
the MVR for Car #5 captures only audio of the encounter along Route 6.
Thereafter, Stipcak contends that Leone, while in the vehicle, spit on his face. (Defs.’
SMF, ¶ 135.) Stipcak testified that he then pushed Leone on his side on the car seat, and
Leone brought his feet up and began kicking him. (Id. at ¶ 136.) Leone testified that he did
not spit on Stipcak. (Plf.’s SMF, ¶ 135.) While not in view of the recording, audio of the
spitting dispute between Stipcak and Leone can be heard on the MVR for Car #5. (Defs.’
SMF, Ex. I.) Leone’s feet and hands were eventually tied together using tie rope restraints.
(Defs.’ SMF, ¶ 147; Plf.’s SMF, ¶ 147.)
Leone was then transported to Memorial Hospital. Leone’s restraints were removed
while he was in the treatment room. (Defs.’ SMF, ¶ 161; Plf.’s SMF, ¶ 161.) Leone testified
that while he was in the hospital, Stipcak punched him in the face and ribs. (Defs.’ SMF, ¶
164; Plf.’s SMF, ¶ 164.) Stipcak, conversely, testified that Leone was initially calm at the
hospital, but after being some questions, he became very agitated. (Defs.’ SMF, ¶¶ 166,
168.) According to Defendants, Leone tried to swing at Stipcak. (Id. at ¶ 176-179.) Burian
and Sean Thibodeault, a paramedic, then entered the room. (Id. at ¶ 179.) Leone
continued flailing, and Stipcak tased him. (Id. at ¶ 184.) Thibodeault testified that Leone
was only tased after he became agitated. (Thibodeault Dep., 35:2-7.) After Leone was
tased, Leone stopped flailing and was able to be cuffed. (Id. at 43:18-23.) Thibodeault
further testified that prior to Leone swinging at Stipcak, neither Stipcak nor Burian acted
aggressively towards Leone. (Id. at 52:1-6.) Leone testified that he was subsequently
beaten a second time at the hospital, but it was “unclear” and he was “foggy” as to who beat
him on that occasion. (Leone Dep., 151:2-7.)

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Leone was released from the hospital and taken to the Towanda barracks for
processing and arraignment. (Defs.’ SMF, ¶ 203; Plf.’s SMF, ¶ 203.) There, Leone was in
handcuffs and shackled to the ground, and he was fingerprinted and photographed without
incident. (Defs.’ SMF, ¶¶ 205, 207; Plf.’s SMF, ¶¶ 205, 207.) A telephone arraignment was
begun with Magisterial District Judge Fred M. Wheaton, but he advised the State Police that
they should make arrangements to bring Leone before him physically or to set up a video
conference. (Wheaton Decl., ¶ 8.) The call ended, and he was never contacted for an inperson or video arraignment. (Id. at ¶¶ 9-10.)
Leone testified that while he was at the barracks, Stipcak pulled out a four-foot stick
and began smacking it on his hand, telling him he was “going to fucking get it.” (Defs.’ SMF,
¶ 216; Plf.’s SMF, ¶ 216.) Stipcak testified, however, that Leone started getting worked up
at that time, so he pulled out his ASP baton and said “if you keep it up, you’re going to go
back to the hospital.” (Stipcak Dep., 160:13-16.)
Thereafter, Leone was escorted out of the barracks for transfer to the county prison.
Leone testified that once he got outside, Burian struck him with the baton and that he was
maced in the eyes. (Leone Dep., 163:18-167:6.) Leone further denied that he attempted
to flee from the troopers. (Id.) Defendants, however, contend that Leone attempted to run
away once he was outside. (Defs.’ SMF, ¶ 229.) As a result, Stipcak drew his baton, striking
Leone twice in the center mass. (Stipcak Dep., 164:11-165:1.) The baton strikes did not
stop Leone, according to Burian, so he pulled out his pepper spray and gave Leone a short
burst which was unsuccessful. (Burian Dep., 99:14-17.) Leone then knocked Burian to the
ground, and as Leone turned to face him, Burian shot a burst of pepper spray in his eyes
and mouth, which temporarily stopped Leone. (Id. at 99:17-100:6.) While Leone was
stunned from the pepper spray, Stipcak struck him twice more with the baton and he was
then taken to the ground. (Id.)

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John Werner, a patrolman for the Towanda Borough Police Department, was then
called to assist Stipcak and Burian. (Defs.’ SMF, ¶ 238; Plf.’s SMF, ¶ 238.) Leone testified
that he was “hogtied” by Stipcak in a concave shape, and that he was eventually picked up
off the ground by Stipcak and thrown in the vehicle. (Leone Dep., 170:2-172:10.) Werner,
however, recalled Leone being able to walk to the vehicle, and he did not recall himself or
any of the troopers lifting Leone from the ground by shackles or tie restraints. (Werner Dep.,
16:1-2, 30:1-8.)
After Leone was in the vehicle, he was transported to Memorial Hospital for the
second time. (Defs.’ SMF, ¶ 250; Plf.’s SMF, ¶ 250.) Leone does not recall being treated
at the hospital the second time. (Defs.’ SMF, ¶ 251; Plf.’s SMF, ¶ 251.) He was transported
back to the station at approximately 6:15 a.m. (Defs.’ SMF, ¶ 254; Plf.’s SMF, ¶ 254.)
Leone was later arraigned by video at the Bradford County prison. (Defs.’ SMF, ¶ 257; Plf.’s
SMF, ¶ 257.)
Leone was ultimately charged with a number of offenses, and a jury found him guilty
of the charges involving damage to another vehicle, fleeing or attempting to elude a police
officer, resisting arrest, and simple assault. (Leone Dep., Ex. 2.)
B.

Procedural History
In view of the foregoing events, Leone commenced this action on March 7, 2012

against Towanda Borough, two Towanda Borough Patrolmen, and a number of
Pennsylvania State Police officials. (Compl.) The Twelve-Count Complaint set forth claims
for violations of Leone’s Fourth and Fourteenth Amendment rights, as well as state law
claims for assault, battery, and concerted tortious conduct. (Id.) The Pennsylvania State
Police officials moved to dismiss the Fourteenth Amendment and state law claims, but their
motion to dismiss was denied and the action proceeded to discovery. See Leone v.
Towanda Borough, No. 12-429, 2012 WL 2590387 (M.D. Pa. July 3, 2012).

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By stipulation filed on February 14, 2014, Defendants Towanda Borough and the two
Towanda Borough Patrolmen were dismissed from the action with prejudice. (Doc. 38.)
And, by stipulation dated May 19, 2014, Defendants Timothy Young, Thomas Jordan, and
Charles Sands were dismissed from the litigation with prejudice. (Doc. 45.) In view of these
stipulations, the only non-dismissed claims are contained in Counts I, V, IX, and X of the
Complaint.
The remaining Defendants, i.e., Stipcak, Renfer, Burian, Knock, and Warnick, filed
the instant motion for summary judgment on May 19, 2014. (Doc. 46.) Leone filed his
submissions in opposition to Defendants’ motion on August 15, 2014. (Docs. 54-55.) And,
on September 12, 2014, Defendants filed their reply brief in further support of their motion.
(Doc. 59.) Defendants’ motion for summary judgment is now fully briefed and ripe for
disposition.
II. Legal Standard
Summary judgment shall be granted “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.”
Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012)
(quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if
proof of its existence or nonexistence might affect the outcome of the suit under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Where there is no material fact in dispute, the moving party need only establish that
it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec., 83 F.3d

9

68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact, summary
judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S.
at 248, 106 S. Ct. 2505. An issue of material fact is genuine if “a reasonable jury could
return a verdict for the nonmoving party.” Id. Where there is a fact in dispute, the moving
party has the initial burden of proving that: (1) there is no genuine question of material fact;
and (2) the moving party is entitled to judgment as a matter of law. See Howard Hess Denal
Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010). The moving party may
present its own evidence or, where the non-moving party has the burden of proof, simply
point out to the court that “the non-moving party has failed to make a sufficient showing on
an essential element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986).
“When considering whether there exist genuine issues of material fact, the court is
required to examine the evidence of record in the light most favorable to the party opposing
summary judgment, and resolve all reasonable inferences in that party's favor.” Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial
burden, the burden shifts to the non-moving party to either present affirmative evidence
supporting its version of the material facts or to refute the moving party's contention that the
facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57, 106 S. Ct.
2505. The Court need not accept mere conclusory allegations, whether they are made in
the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110
S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
“To prevail on a motion for summary judgment, the non-moving party must show
specific facts such that a reasonable jury could find in that party's favor, thereby establishing
a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265,
270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). “While the evidence that the non-moving

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party presents may be either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler
County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary
judgment, “the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249, 106 S. Ct. 2505.
III. Discussion
Defendants’ motion for summary judgment requests the entry of judgment in their
favor on all of Leone’s remaining claims, i.e., the Fourth Amendment claim (Count I), the
Fourteenth Amendment claim (Count V), the assault claim (Count IX), and the battery claim
(Count X). (Doc. 48.) In his opposition brief, Leone agrees that at all times relevant to this
action he was an arrestee and not a pretrial detainee, (Doc. 55, 8), thus conceding that
Defendants are entitled to summary judgment on the Fourteenth Amendment claim. See
Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998) (“While the Fourth
Amendment protects arrestees, once an arrest is complete, pretrial detainees are protected
by the due process clause of the Fifth or Fourteenth Amendments.”); Bodnar v. Wagner,
No. 07-2038, 2010 WL 56097, at *6 (M.D. Pa. Jan. 5, 2010) (same). Therefore, at issue
is whether Defendants are entitled to summary judgment on Leone’s Fourth Amendment,
assault, and/or battery claims. Leone’s Fourth Amendment claim will be addressed first.
A.

Fourth Amendment Claim
The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated. . . .” U.S. Const. amend. IV.
Leone’s Fourth Amendment claim is brought pursuant to 42 U.S.C. § 1983. Section 1983
provides that “[e]very person who, under color of any statute, ordinance, regulation, custom,

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or usage . . . subjects, or causes to be subjected, any citizen . . . or other person . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured, . . .” 42 U.S.C. § 1983. “To establish liability under 42
U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of law, violated
the plaintiff's federal constitutional or statutory rights, and thereby caused the complained
of injury.” Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citing Sameric Corp. of Del.,
Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998)).
“A claim for excessive force under the Fourth Amendment requires a plaintiff to show
that a seizure occurred and that it was unreasonable,” Curley v. Klem, 298 F.3d 271, 279
(3d Cir. 2002) (citing Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)), and “[t]he use
of excessive force is itself an unlawful ‘seizure’ under the Fourth Amendment,” Couden v.
Duffy, 446 F.3d 483, 496 (3d Cir. 2006) (citing Graham v. Connor, 490 U.S. 386, 395, 109
S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Carswell v. Borough of Homestead, 381 F.3d 235,
240 (3d Cir. 2004)). “In deciding whether challenged conduct constitutes excessive force,
a court must determine the objective ‘reasonableness’ of the challenged conduct,
considering ‘the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officer or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Couden, 446 F.3d at 496-97 (quoting Carswell, 381
F.3d at 240). “Other factors include ‘the duration of the [officer's] 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.’” Couden, 446 F.3d at 497 (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997)).

This standard is one of objective reasonableness, and looks to “‘the

reasonableness of the officer’s belief as to the appropriate level of force[,]’ which ‘should
be judged from [the officer’s] on-scene perspective,’ and not in the ‘20/20 vision of

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hindsight.’” Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (alterations in original) (quoting
Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). Courts are
instructed to “take into consideration the fact that ‘police officers are often forced to make
split-second judgments- in circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation.’” Couden, 446 F.3d at
497 (quoting Graham, 490 U.S. at 397, 109 S. Ct. 1865).
Defendants’ motion for summary judgment on the excessive force claim will be
denied. First, a determination on the reasonableness of the use of force depends on “all
of the relevant facts and circumstances leading up to the time that the officers allegedly
used excessive force,” and that “[t]he reasonableness of the use of force is normally an
issue for the jury.” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (citing
Abraham, 183 F.3d at 290-91). Here, the facts and circumstances regarding Defendants’
use of force against Leone during his first visit to the hospital, outside the Towanda
barracks, and along Route 6 are largely in dispute, and whether Defendants’ use of force
was reasonable will be left to the jury’s determination.
Second, as noted above, the pursuit of Leone’s vehicle along Route 6 was recorded
by multiple MVRs, while portions of the use of force against Leone once the pursuit ended
was captured by video and/or audio by the MVR for Car #5. Here, Defendants and Leone
provide two different accounts as to the use of force that occurred along the side of Route
6, and Defendants contend that viewing “the facts in the light depicted by the videotape,”
summary judgment in their favor is warranted. Scott v. Harris, 550 U.S. 372, 380-81, 127
S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Unlike in Scott, however, Leone’s story is not
“blatantly contradicted by the record,” nor is it “so utterly discredited” by the MVR for Car #5
“that no reasonable jury could . . . believe him.” Id. Rather, that video depicts a scene in
which Leone is tased, pulled from his vehicle, and appears to be punched multiple times,

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as well as jumped on. (Defs.’ SMF, Ex. I.) Furthermore, the scene was extremely noisy, and
little time elapsed from when officers approached Leone’s car to when he was put on the
ground, (id.), which supports his contention that he did not have an adequate opportunity
to respond to any instructions given by the officers. Likewise, after Leone and Defendants
are no longer visible on camera, the audio for the MVR for Car #5 appears to capture
Stipcak yelling at Leone and telling him, among other things, that “you have a long fucking
night ahead of you.” (Id.) Stipcak then can be heard accusing Leone of spitting on him,
which Leone denies, and Leone begins screaming. (Id.) Later, Stipcak tells Leone that he
will have a “hell of a lot tougher night ahead” after spitting in his face. (Id.) In this case, the
video, including the audible voices and sounds captured by the MVR for Car #5, creates a
question for the jury as to whether the use of force against Leone was objectively
reasonable.
Third, Defendants contend that because “[a] review of . . . credibility shows that
Plaintiff’s accounts of the evening are uncorroborated by anyone,” (Doc. 59, 9), summary
judgment is appropriate pursuant to Brown v. Borough of Chambersburg, 903 F.3d 274 (3d
Cir. 1990). But, as the Third Circuit subsequently explained in Groman v. Township of
Manalapan, 47 F.3d 628, 634 n.5 (3d Cir. 1995), Brown affirmed “the district court's holding
that plaintiff's claim was frivolous because it was based on plaintiff's bare assertion of police
excessive force, was completely uncorroborated by other evidence, and plaintiff's
recollection was dimmed by alcohol.” Here, like in Groman, there is at least “some
corroboration” of Leone’s version of events by way of the MVR for Car #5. See Groman, 47
F.3d at 634 n.5 (“Here, there is some corroboration from Mrs. Groman on the initial
altercation and from others on the injuries sustained.”). Accordingly, “there are material
issues of disputed fact and credibility determinations that cannot be decided on a motion
for summary judgment.” Id. at 634.

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Lastly, Defendants are not entitled to summary judgment on the Fourth Amendment
claim on the basis of qualified immunity. State actors sued in their individual capacity under
§ 1983 are entitled to qualified immunity “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, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
The doctrine of “qualified immunity . . . ‘provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.’” Blackhawk v. Pennsylvania, 381 F.3d
202, 215 (3d Cir. 2004) (internal citation omitted)). In determining whether a defendant is
entitled to qualified immunity, a court considers whether the official's acts violated a
constitutional or statutory right and (if so) whether that right was clearly established at the
time of the violation. See Yarris v. County of Del., 465 F.3d 129, 140-41 (3d Cir. 2006)
(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). A
court has “discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009).
As explained, a material factual dispute exists regarding whether Defendants violated
Leone’s right to be free from the use of excessive force. See, e.g., Suarez v. City of
Bayonne, 566 F. App’x 181, 187 (3d Cir. 2014). And, regarding the “clearly established”
prong of the qualified immunity question, the Third Circuit has noted that “the factors
relevant to the excessive force analysis are well-recognized . . . .” Couden, 446 F.3d at 497.
Thus, “[w]ere the jury to credit [Leone’s] testimony, that finding would support the conclusion
that [Defendants] used excessive force under clearly established law.” Suarez, 566 F. App’x
at 186; Epifan v. Roman, No. 11-2591, 2014 WL 4828606, at *15 (D.N.J. Sept. 29, 2014)
(same); Scutella v. City of Erie Bureau of Police, No. 11-198, 2014 WL 5425626, at *8
(W.D. Pa. Oct. 22, 2014) (denying motion for summary judgment on qualified immunity

15

grounds because “it simply is not clear what were the circumstances under which Officer
Cousins used his Taser on the Plaintiff and therefore, there exists a genuine issue of
material fact as to whether or not Officer Cousins used excessive force when he tased
Plaintiff.”); Wilhere v. Delaware Cnty., No. 09-22, 2010 WL 1381664, *7 (E.D. Pa. Apr.1,
2010) (denying summary judgment on qualified immunity defense because factual disputes
remained about “whether Mr. Wilhere was informed that he was under arrest before he was
tasered, whether Mr. Wilhere actively resisted such arrest, whether Mr. Wilhere posed an
immediate threat to the safety of the deputies or others, and the level and detail of each
deputies' participation in the “struggle” surrounding the tasering.”). Defendants’ motion for
summary judgment on the Fourth Amendment claim on qualified immunity grounds will be
denied.
B.

State Law Claims
Defendants also seek summary judgment on Leone’s state law assault and battery

claims. According to Defendants, summary judgment on the state law claims is warranted
on the basis of state law sovereign immunity. Specifically, Defendants cite 1 Pa. Cons.
Stat. Ann. § 2310, which provides:
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is
hereby declared to be the intent of the General Assembly that the
Commonwealth, and its officials and employees acting within the scope of their
duties, shall continue to enjoy sovereign immunity and official immunity and
remain immune from suit except as the General Assembly shall specifically
waive the immunity. When the General Assembly specifically waives
sovereign immunity, a claim against the Commonwealth and its officials and
employees shall be brought only in such manner and in such courts and in
such cases as directed by the provisions of Title 42 (relating to judiciary and
judicial procedure) or 62 (relating to procurement) unless otherwise specifically
authorized by statute.
1 Pa. Cons. Stat. Ann. § 2310.
The Sovereign Immunity Act states that, except as otherwise provided therein, no
statutory provision “shall constitute a waiver of sovereign immunity.” 42 Pa. Cons. Stat. Ann.
§ 8521(a). The provision waiving sovereign immunity in certain instances is codified at 42
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Pa. Cons. Stat. Ann. § 8522(a), and provides:
The General Assembly, pursuant to section 11 of Article I of the Constitution
of Pennsylvania, does hereby waive, in the instances set forth in subsection
(b) only and only to the extent set forth in this subchapter and within the limits
set forth in section 8528 (relating to limitations on damages), sovereign
immunity as a bar to an action against Commonwealth parties, for damages
arising out of a negligent act where the damages would be recoverable under
the common law or a statute creating a cause of action if the injury were
caused by a person not having available the defense of sovereign immunity.
42 Pa. Cons. Stat. Ann. § 8522(a).1 “Commonwealth party” is defined by statute as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act within the
scope of his office or employment.” 42 Pa. Cons. Stat. Ann. § 8501. As such, “[s]overeign
immunity ‘protects the Commonwealth and Commonwealth parties from suit unless the
cause of action falls within one of several statutory exceptions, or the individual's conduct
falls outside the scope of his employment.’” Bolden v. Pa. Bureau of Prisons, No. 11-0467,
2011 WL 4974489, at *4 (E.D. Pa. Oct.19, 2011) (quoting Wesley v. Hollis, No. 03-3130,
2007 WL 1655483, at * 14 (E.D. Pa. June 6, 2007)).
Conduct of an employee is within the scope of employment if it is of a
kind and nature that the employee is employed to perform; it occurs
substantially within the authorized time and space limits; it is actuated, at least
in part, by a purpose to serve the employer; and if force is intentionally used
by the employee against another; it is not unexpected by the employer.
Natt v. Labar, 543 A.2d 223, 213-14 (Pa. Cmwlth. Ct. 1988) (citing Fitzgerald v.
McCutcheon, 410 A.2d 1270 (Pa. Super. Ct. 1979)). “This language suggests that when
the use of force is involved, the scope of an individual’s employment depends on the
expectations of his or her employer.” Zion v. Nassan, 283 F.R.D. 247, 266 (W.D. Pa. 2012).

1

The statutory waiver of sovereign immunity contained in § 8522(b) includes: (1)
vehicle liability; (2) medical-professional liability; (3) care, custody or control of
personal property; (4) commonwealth real estate, highways and sidewalks; (5)
potholes and other dangerous conditions; (6) care, custody or control of animals;
(7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines.
42 Pa. Cons. Stat. Ann. § 8522(b)(1)-(9). These exceptions are not applicable in
this case.
17

As explained by one district court, “[t]he extent to which the intentional use of ‘force’ is
properly characterized as an act within the scope of one's employment depends on the
extent of an employer's expectation of force rather than on the extent of an employer's
authorization of force.” Strothers v. Nassan, No. 08-1624, 2009 WL 976604, at *8 (W.D. Pa.
Apr. 9, 2009). And, where “the employee commits an act encompassing the use of force
which is excessive and so dangerous as to be totally without responsibility or reason, the
employer is not responsible as a matter of law. If an assault is committed for personal
reasons or in an outrageous manner, it is not actuated by an intent of performing the
business of the employer and is not done within the scope of employment.” Id. at *9 (citation
omitted). Furthermore, “‘the question of whether an individual has acted within the scope
of his or her employment is ordinarily a question of fact for the jury to decide.’” Id. (citing Orr
v. William J. Burns Int’l Detective Agency, 337 Pa. 587, 12 A.2d 25, 27 (Pa.1940)).
Here, factual issues exist as to whether Defendants’ actions were actuated by an
intent to serve their employer and whether the use of force was expected by their employer.
In particular, if the jury were to adopt Leone’s version of the facts regarding the events
during his first visit to the hospital and outside the Towanda barracks, the jury could find
Defendants used force for personal reasons or in an outrageous manner. Likewise, in view
of the MVR for Car #5, a reasonable jury could conclude that Defendants’ use of force was
excessive and without responsibility or reason. Further, the audio for the MVR for Car #5
which appears to capture Stipcak telling Leone that “you have a long fucking night ahead
of you” could lead a jury to conclude that the use of force against Leone was based on
personal reasons and not actuated by Defendants’ intent to serve their employer.
Accordingly, Defendants’ motion for summary judgment on the state law claims based on
sovereign immunity will be denied. See, e.g., Bowman v. Reilly, No. 09-1322, 2010 WL
831412, at *9-10 (E.D. Pa. Mar. 4, 2010).

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IV. Conclusion
For the above stated reasons, Defendants’ motion for summary judgment on Leone’s
due process claim will be granted. Defendants’ motion will be denied in all other respects.
An appropriate order follows.

January 6, 2015
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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