Heilimann v. O'Brien et al

Filing 56

MEMORANDUM (Order to follow as separate docket entry) re 42 MOTION for Summary Judgment and Memo of Law in Support thereof filed by Mount Airy, No. 1, LLC, Cory Moody Signed by Honorable James M. Munley on 3/7/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN A. HEILIMANN,

:
No. 3:14cv1271
Plaintiff
:
:
(Judge Munley)
v.
:
:
STATE TROOPER THOMAS O’BRIEN, :
Individually and as a State Trooper :
for the Commonwealth of
:
Pennsylvania; STATE TROOPER
:
PETER P. NEMSHICK, Individually
:
and as a State Trooper for the
:
Commonwealth of Pennsylvania;
:
CORY MOODY; AGENT
:
CHRISTOPHER CARDONI,
:
Individually and as an employee of :
the Pennsylvania Gaming Control
:
Board; MOUNT AIRY, NO. 1, LLC
:
d/b/a MT. AIRY CASINO; JOHN DOE :
CASINO DEFENDANTS #1-25,
:
Individually and as employees of Mt. :
Airy Casino; and JANE DOE CASINO :
DEFENDANTS #1-25, Individually and :
as employees of Mt. Airy Casino,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Ryan A. Heilimann (hereinafter “plaintiff”) avers that two
Pennsylvania state troopers, a Pennsylvania Gaming Control Board
(hereinafter “GCB”) agent, and casino security violated Pennsylvania state
law and his civil rights under 42 U.S.C. § 1983 (hereinafter “section 1983”)
for events related to his detainment and arrest inside Mount Airy Casino.

Before the court for disposition is Defendants Mount Airy Casino and
casino security officer Cory Moody’s (collectively “the casino defendants”)
motion for summary judgment. (Doc. 42). For the reasons that follow, we
will grant in part and deny in part the motion.
Background
On August 25, 2012, plaintiff visited Gypsies nightclub inside Mount
Airy Casino in Mount Pocono, Pennsylvania. (Doc. 53-1, Pl.’s Additional
Statement of Material Facts (hereinafter “Pl.’s SOF”) ¶ 1).1 While dancing
with a woman, plaintiff was escorted off the dance floor by Pennsylvania
state troopers and casino employees. (Pl.’s SOF ¶¶ 2-4). At some point, a
verbal exchange ensued, after which troopers arrested plaintiff and
escorted him to the Pennsylvania State Police office located inside the
casino. (Pl.’s SOF ¶ 5).
The parties dispute what happened next. Plaintiff testified that
Defendant State Trooper Thomas O’Brien pushed him face down into the
floor and intentionally twisted his ankle until it broke. (Doc. 53-2, Dep. of
Pl. Ryan A. Heilimann (hereinafter “Pl. Dep.”) at 24-26). Defendant Cory
Moody, a casino security officer, however, testified that plaintiff tried to kick
State Trooper O’Brien, but O’Brien caught plaintiff’s leg and pushed him
1

We cite to plaintiff’s additional SOF for statements that are generally
unrefuted in the record.
2

down toward the floor. (Doc. 42-2, Ex. E, Dep. of Def. Cory Moody
(hereinafter “Moody Dep.”) at 32-34).
As a result of the night’s events, the Commonwealth charged plaintiff
with aggravated assault under 18 PA. CONS. STAT. ANN. § 2702(a)(3),
resisting arrest under 18 PA. CONS. STAT. ANN. § 5104, disorderly conduct
under 18 PA. CONS. STAT. ANN. § 5503(a)(1), harassment under 18 PA.
CONS. STAT. ANN. § 2709(a)(1), and public drunkenness under 18 PA.
CONS. STAT. ANN. § 5505. (Pl.’s SOF ¶ 14). A jury found plaintiff not guilty
of aggravated assault and disorderly conduct, and a Monroe County Court
of Common Pleas judge dismissed plaintiff’s resisting arrest charge on a
motion for judgment of acquittal. (Pl.’s SOF ¶ 17). The judge, however,
found plaintiff guilty of harassment and public drunkenness. (Id.)
On July 1, 2014, plaintiff filed a thirteen-count complaint against
Defendant State Troopers O’Brien and Peter P. Nemshick and Gaming
Control Board Agent Christopher Cardoni (collectively “the Commonwealth
defendants”) as well as the casino defendants. (Doc. 1, Compl.). Counts I,
III, V, VII, and XI allege civil rights violations under section 1983 against all
defendants, excluding Mount Airy Casino.2 Counts II, IV, VI, VIII-X, XII also

2

The Commonwealth defendants have moved for summary judgment on
plaintiff’s section 1983 malicious prosecution claim, which is addressed in a
separate memorandum.
3

assert respective Pennsylvania state law assault, battery, false
imprisonment, conspiracy, intentional infliction of emotional distress,
negligent infliction of emotional distress, and malicious prosecution claims
against Defendant Moody. Count XIII asserts a vicarious liability claim
against Defendant Mount Airy Casino.
On March 4, 2016, the casino defendants moved for summary
judgment on all claims. (Doc. 42). The parties have briefed their
respective positions and the matter is ripe for disposition.
Jurisdiction
As this case is brought pursuant to section 1983 for a violation of
plaintiff’s constitutional rights, we have jurisdiction under 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”). We have
supplemental jurisdiction over plaintiff’s state law claims pursuant to 28
U.S.C. § 1367.
Standard of Review
Granting summary judgment is proper if 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 judgment as a matter of law. See
4

Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P.
56(c)). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
nonmoving party. Anderson, 477 U.S. at 248. A fact is material when it
might affect the outcome of the suit under the governing law. Id. Where
the nonmoving party will bear the burden of proof at trial, the party moving
for summary judgment may meet its burden by establishing that the
evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the nonmovant’s burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits, depositions,
5

admissions, or answers to interrogatories demonstrating that there is a
genuine issue for trial. Id. at 324.
Discussion
The casino defendants move for summary judgment on all thirteen of
plaintiff’s claims, as well as plaintiff’s punitive damages claim. We address
each in turn, beginning with plaintiff’s federal claims.
I. Section 1983 Claims
The casino defendants first move for summary judgment on plaintiff’s
section 1983 claims, arguing that they are not state actors, and therefore,
section 1983 does not apply. Section 1983 does not, by its own terms,
create substantive rights; rather, it provides remedies for deprivations of
rights established elsewhere in the Constitution or federal law. Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Section 1983 states, in
pertinent part,
Every person who, under the color of any statute,
ordinance, regulation, custom, or usage, of any State or
territory or the District of Columbia, subjects, or causes to
be subjected, any citizens of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two
criteria must be met. First, the conduct complained of must have been
6

committed by a person acting under color of state law. Kaucher v. Cty. of
Bucks, 455 F.3d 418 (3d Cir. 2006) (citing Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999)). Second, the conduct must deprive
the plaintiff of rights secured under the Constitution or federal
law. Id. (citing Am. Mfrs., 526 U.S. at 49-50).
Generally, private actors do not act under color of state law, and thus
are not liable under section 1983. Indeed, a private entity is only liable
under section 1983 if it “may fairly be said to be a state actor.” Lugar v.
Edmondson Oil Co. Inc., 457 U.S. 922, 937 (1982). To that end, the United
States Supreme Court has articulated several tests to determine whether a
private individual may “fairly be said to be a state actor.”
Two of these state actor tests are the “joint action” test and the
“symbiotic relationship” test. Here, while the casino defendants argue that
they cannot be held liable under section 1983 pursuant to the “joint action”
test, plaintiff contends that they may be held liable under both the “joint
action” test and the “symbiotic relationship” test. We address each test in
turn.
A. Joint Action Test
The casino defendants argue that they are not state actors under the
joint action test, and therefore, plaintiff’s section 1983 claims must fail as a
7

matter of law. While we agree that plaintiff has not produced evidence
sufficient to pass this test, plaintiff’s section 1983 claims do not warrant
dismissal.
Under the joint action test, a private party will be deemed a state
actor if it is a “willful participant in joint action with the State or its
agents.” Lugar, 457 U.S. at 941. Moreover, a private entity may only be
deemed a state actor, and therefore liable under section 1983, for actions
of police officers if: (1) the private entity has a “prearranged plan” with
police officers; and (2) under the plan, the police officers will “substitute
their [own] judgment” with that of the private entity’s. Cruz v. Donnelly, 727
F.2d 79, 81-82 (3d Cir. 1984).
Here, plaintiff has satisfied the first prong of the joint action test, but
not the second. Initially, the evidence demonstrates a custom of
interdependency between casino security and state troopers in that they
routinely rely on each other to investigate and resolve potential criminal
activity inside Mount Airy Casino. (Moody Dep. at 8, 10, 15, 21-22; Doc.
42-2, Ex. H, Dep. of Lianne Asbury (hereinafter “Asbury Dep.”) at 12).
While such evidence presents a genuine issue of material fact
regarding the first prong of the joint action test, that is, whether the casino
defendants had a “prearranged plan” with the Commonwealth defendants,
8

plaintiff has produced no evidence of the second prong of the joint action
test, that the Commonwealth defendants substituted their own judgment
with that of the casino defendants. To the contrary, the undisputed
evidence establishes that the Commonwealth defendants, namely State
Troopers O’Brien and Nemshick, were the principal actors throughout the
alleged course of events. Defendant Moody, on the other hand, arrived at
the State Police office after plaintiff had already been detained and
arrested, wrote only a victim/witness statement for the State Police, banned
plaintiff from the casino based on information from the Commonwealth
defendants, and did not testify at plaintiff’s criminal trial. (Moody Dep. at
22, 28, 42-43 & 44).
In the absence of any evidence suggesting that the State Troopers
substituted their own judgment with that of Defendant Moody’s, the casino
defendants cannot qualify as section 1983 state actors under the joint
action test. Because the joint action test is merely one way to determine
whether a private entity may qualify as a section 1983 state actor, however,
this finding is not dispositive.3

3

While the joint action test is routinely analyzed with respect to section
1983 conspiracy claims, failure to establish both prongs of this test does
not mean that plaintiff’s conspiracy claim must also fail. To the contrary,
the joint action test is merely one way to prove that a private party may
fairly be said to be a state actor. In a section 1983 conspiracy claim
9

B. Symbiotic Relationship Test
Plaintiff argues that the casino defendants are state actors under the
symbiotic relationship test, and therefore, the casino defendants may be
held liable under section 1983. We agree.
Under the symbiotic relationship test, a private party will be deemed a
state actor if “a close association of mutual benefit” exists between the
state and the private entity or party. Crissman v. Dover Downs Entm’t, Inc.,
289 F.3d 231, 240 (3d Cir. 2002) (citing Burton v. Wilmington Parking
Auth., 365 U.S. 715, 724 (1961)). This requires that we “test whether the
conduct [complained of] could be linked to the joint beneficial activities[.]”
Crissman, 289 F.3d at 241.

against a private entity, the plaintiff’s initial burden is to prove that section
1983 applies to the private entity under one of four tests: (1) the “close
nexus” test under Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); (2) the
“symbiotic relationship” test under Burton v. Wilmington Parking Auth., 365
U.S. 715, 725 (1961); (3) the “joint action” test under Lugar, 457 U.S. at
941; or (4) the “public function” test under Terry v. Adams, 345 U.S. 461,
468-70 (1953). In this state action inquiry, “more than one test may be
relevant[,] . . . the tests may overlap, and one or more prongs of one test
may be irreconcilably inconsistent with the prong of another.” Goussis v.
Kimball, 813 F. Supp. 352, 357 (E.D. Pa. 1993). The test to be applied
depends upon the circumstances of the case, and the United States
Supreme Court has counseled lower courts to investigate carefully the facts
of each case. Id. (citing Burton, 365 U.S. at 722). After the plaintiff
establishes that section 1983 applies, plaintiff’s second burden is to prove
the elements of conspiracy.
10

Here, the casino defendants have failed to brief the applicability of the
symbiotic relationship test. Even if they had, viewing the facts in plaintiff’s
favor, a reasonable jury would conclude that plaintiff has presented
evidence sufficient to pass this test.
With respect to the Pennsylvania State Police, Mount Airy Casino
houses a State Police office, and state troopers patrol and conduct security
functions inside the casino. (Asbury Dep. at 24; Moody Dep. at 8).
Working together, state troopers and casino security investigate incidents,
and security officers rely on troopers to remove patrons from the premises.
(Moody Dep. at 10, 15). When a patron is taken to the casino’s State
Police office, the casino security shift manager is called to respond.
(Moody Dep. at 21-22). Additionally, the casino’s director of security meets
regularly with state troopers “to decide how we want to protect this property
as well as for them to influence and enforce law as well as for us to
promote asset protection with our guests and employees.” (Asbury Dep. at
12).
With respect to the Pennsylvania GCB, Mount Airy Casino also
houses a GCB office, and a GCB agent is present in the casino twenty-four
hours per day. (Doc. 53-2, Ex. C, Dep. of Def. Christopher Cardoni
(hereinafter “Cardoni Dep.”) at 6; Asbury Dep. at 21-22). GCB agents also
11

enforce casino regulations, monitor the casino floor, and regularly
coordinate with security officers. (Cardoni Dep. at 6, 8-9).
Based on the foregoing, a reasonable jury would conclude that a
close association of mutual benefit exists between the casino and
Commonwealth defendants. Specifically, deposition testimony indicates
that these defendants operate interdependently for their mutual benefit
such that they rely equally on one another to investigate, respond to, and
resolve incidents inside the casino. Thus, plaintiff has established that
section 1983 applies to the casino defendants under the symbiotic
relationship test.
II. Substance of Section 1983 Claims
Having determined that the casino defendants may be state actors
under section 1983, the casino defendants next argue that their conduct
failed to deprive plaintiff of his constitutional rights. Specifically, the casino
defendants seek summary judgment on Counts I, III, V, VII, XI, and XIII,
plaintiff’s respective section 1983 excessive force, assault, unlawful arrest,
conspiracy, malicious prosecution, and vicarious liability claims. We
address each in turn.

12

A. Excessive Force, Assault, and Unlawful Arrest
The casino defendants first move for summary judgment on Counts I,
III, and V, plaintiff’s respective section 1983 excessive force,4 assault,5 and
unlawful arrest claims.6 Plaintiff admits that Defendant Moody did not have
authority to arrest him and that Defendant Moody did not have any physical
interaction with him. (Pl.’s SOF ¶¶ 4, 6). Additionally, plaintiff has failed to
establish that Defendant Moody influenced or encouraged the
Commonwealth defendants in any way to use excessive force, assault, or
4

Where an alleged use of excessive force occurs in the context of an
arrest, the claim “is properly analyzed under the Fourth Amendment’s
‘objective reasonableness’ standard.” Johnson v. City of Phila., 837 F.3d
343, 349 (3d Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 388
(1989)). To prevail on a Fourth Amendment excessive force claim, “a
plaintiff must show that a ‘seizure’ occurred and that it was unreasonable
under the circumstances.” Lamont v. New Jersey, 637 F.3d 177, 182-83
(3d Cir. 2011) (citing Brower v. Cty. of Inyo, 489 U.S. 593, 599 (1989)).
5

While excessive force claims, which often contemplate the elements of
assault and battery, may be brought pursuant to section 1983,
supplemental assault and battery claims are properly brought pursuant to
state law.
6

“It is well-established that the Fourth Amendment ‘prohibits a police
officer from arresting a citizen except upon probable cause.’” Reedy v.
Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (quoting Orsatti v. N.J. State
Police, 71 F.3d 480, 482 (3d Cir. 1995) (citation omitted)). “[P]robable
cause to arrest exists when the facts and circumstances within the
arresting officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being
committed by the person to be arrested.” Id. (quoting Orsatti, 71 F.3d at
483) (internal quotation marks omitted).
13

arrest him. Plaintiff cannot prove these claims in the absence of such
evidence, and therefore, we will grant the casino defendants’ motion on
plaintiff’s section 1983 excessive force, assault, and unlawful arrest claims,
and we will dismiss Counts I, III, and V with respect to Defendant Moody.
B. Conspiracy
The casino defendants next move for summary judgment on Count
VII, plaintiff’s section 1983 conspiracy claim. To establish a conspiracy
claim under section 1983, a plaintiff must establish both the applicability of
section 1983 and the Pennsylvania state law elements of a civil conspiracy.
Dice v. Johnson, 711 F. Supp. 2d 340, 357 (M.D. Pa. 2010) (citing
Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974)). “A civil
conspiracy is a combination of two or more persons acting in concert to
commit an unlawful act, or to commit a lawful act by unlawful means, the
principal element of which is an agreement between the parties to inflict a
wrong against or injury upon another, and an overt act that results in
damage.” Id. (quoting Adams v. Teamsters Local 115, 214 F. App’x 167,
172 (3d Cir. 2007) (citations omitted)).
Here, plaintiff has already established that section 1983 applies to the
casino defendants under the symbiotic relationship test. Additionally,
plaintiff’s evidence presents a genuine issue of material fact as to whether
14

the casino and Commonwealth defendants agreed to violate plaintiff’s
rights. In particular, plaintiff testified that while he was shackled to a bench
inside the State Police office, State Trooper O’Brien pushed him face down
into the floor and intentionally twisted his ankle until it broke. (Pl. Dep. at
24-26). Plaintiff further testified that while O’Brien twisted his leg, O’Brien
said, “Congratulations, you just assaulted an officer.” (Pl. Dep. at 26). This
account is contrary to that of Defendant Moody, who testified that plaintiff
tried to kick State Trooper O’Brien, but O’Brien caught plaintiff’s leg and
pushed him down toward the floor. (Moody Dep. at 32-34).
Believing plaintiff’s testimony, a reasonable jury could find that the
casino and Commonwealth defendants agreed to adopt Defendant
Moody’s account of the circumstances leading to plaintiff’s injury and
subsequent criminal charges arising out of those circumstances. Viewing
the evidence in a light most favorable to plaintiff, plaintiff has produced
evidence sufficient to establish a conspiracy. As such, we will deny the
casino defendants’ motion for summary judgment with respect to Count VII,
plaintiff’s section 1983 conspiracy claim.
C. Malicious Prosecution
The casino defendants next move for summary judgment on Count
XI, plaintiff’s section 1983 malicious prosecution claim. To prevail on a
15

Fourth Amendment malicious prosecution claim under section 1983, a
plaintiff must demonstrate that: (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in plaintiff’s favor; (3) the
proceeding was initiated without probable cause; (4) the defendants acted
maliciously or for a purpose other than bringing the plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding. Black v. Montgomery
Cty., 835 F.3d 358, 364 (3d Cir. 2016) (quoting Johnson v. Knorr, 477 F.3d
75, 82 (3d Cir. 2007) (internal quotation marks omitted)).
Regarding the first element, “[a]lthough prosecutors rather than police
officers are generally responsible for initiating criminal proceedings, an
officer may, however, be considered to have initiated a criminal proceeding
if he . . . knowingly provided false information to the prosecutor or
otherwise interfered with the prosecutor’s informed discretion.” Henderson
v. City of Phila., 853 F. Supp. 2d 514, 518 (E.D. Pa. 2012) (citations and
internal quotations omitted); see also Gallo v. City of Phila., 161 F.3d 217,
220 n.2 (3d Cir. 1998) (“Decisions have recognized that a § 1983 malicious
prosecution claim might be maintained against one who furnished false
information to, or concealed information from, prosecuting authorities.”).
“[I]t is not necessary that defendant initiate the proceedings himself[,]” as
16

“[l]iability for malicious prosecution can also attach when defendant
influences a third party to initiate the proceedings.” Bristow v. Clevenger,
80 F. Supp. 2d 421, 432-33 (M.D. Pa. 2000) (citations omitted).
Here, plaintiff has failed to establish that Defendant Moody, a casino
security officer, initiated a criminal proceeding. Although Moody prepared a
victim/witness statement for the State Police regarding the altercation he
observed between plaintiff and the Commonwealth defendants, plaintiff
points to no evidence suggesting that Moody knowingly provided false
information to prosecutors or otherwise influenced them to initiate the
criminal proceedings.
At this juncture, the evidentiary materials of record would be
insufficient to carry plaintiff’s burden of proof at trial on his section 1983
malicious prosecution claim against Defendant Moody. Specifically,
plaintiff cannot prove the first element of his claim, that Moody initiated a
criminal proceeding against him. As a result, we will grant the casino
defendants’ motion for summary judgment on plaintiff’s section 1983
malicious prosecution claim, and we will dismiss Count XI with respect to
Defendant Moody.

17

D. Vicarious Liability
The casino defendants next move for summary judgment on Count
XIII, plaintiff’s section 1983 vicarious liability claim. Under section 1983, a
private corporation “cannot be held responsible for the acts of its
employees under a theory of respondeat superior or vicarious liability.”
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2005)
(footnote omitted) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978)). Rather, to establish a viable section 1983 claim against
a private entity, a plaintiff must demonstrate that the entity had a policy,
practice, or custom that caused the constitutional violation alleged. Id. at
583-84 (citing Bd. Of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S.
397, 404 (1997)).
Here, the record presents a genuine issue of material fact as to
whether whether casino custom caused plaintiff’s alleged constitutional
violation. Plaintiff contends that casino custom allowed casino security and
State Troopers to act interdependently, and that this practice allowed State
Troopers O’Brien and Nemshick, GCB Agent Cardoni, and security officer
Moody to conspire against plaintiff.
In support of his contention, plaintiff cites Defendant Moody, who
testified that state troopers patrol and conduct security functions inside the
18

casino. (Moody Dep. at 8). Working together, casino security and the
State Police investigate incidents inside the casino, and security officers
rely on troopers to remove patrons from the premises. (Moody Dep. at 10,
15). When a patron is taken to the State Police office inside the casino, the
casino security shift manager is called to respond. (Moody Dep. at 21-22).
Additionally, Mount Airy Security Director Lianne Asbury testified that
although State Police and security officers do not attend the same formal
trainings, she meets with state troopers “to decide how we want to protect
this property as well as for them to influence and enforce law as well as for
us to promote asset protection with our guests and employees.” (Asbury
Dep. at 12).
Viewing this evidence in a light most favorable to plaintiff, plaintiff has
established that Mount Airy Casino’s custom of interdependency between
its own security officers and State Police may have caused plaintiff’s
alleged constitutional violation. As such, we will deny the casino
defendants’ motion for summary judgment on Count XIII, plaintiff’s section
1983 vicarious liability claim.
III. State Law Claims
The casino defendants also move for summary judgment on Counts
II, IV, VI, VIII, IX, X, and XII, plaintiff’s respective state law battery, assault,
19

false imprisonment, conspiracy, IIED, NIED, and malicious prosecution
claims. We address each in turn.
A. Battery
The casino defendants move for summary judgment on Count II,
plaintiff’s state law battery claim. Under Pennsylvania law, battery is the
intentional, unconsented, and either harmful or offensive contact with
another’s person. Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183,
191 (Pa. 2012) (citations omitted).
Here, plaintiff admits that Defendant Moody did not have any physical
interaction with him. (Pl.’s SOF ¶ 6). Plaintiff cannot prove battery in the
absence of such a physical interaction, and therefore, we will grant the
casino defendants’ motion on plaintiff’s state law battery claim. As we have
already dismissed Count II with respect to the Commonwealth defendants,
we will now dismiss Count II in its entirety.
B. Assault
The casino defendants next move for summary judgment on Count
III, plaintiff’s state law assault claim. Under Pennsylvania law, assault is
the intentional attempt to cause imminent apprehension of a harmful or
offensive contact with another’s person. Sides v. Cleland, 648 A.2d 793,
796 (Pa. Super. Ct. 1994) (citation omitted). Relevant here, “Pennsylvania
20

case law suggests that a defendant cannot be held liable for assault if he
was not the principal actor, was not present at the scene of the assault, and
did not otherwise specifically cause the assault to occur.” Lakits v. York,
258 F. Supp. 2d 401, 407-08 (E.D. Pa. 2003) (citing Sides, 648 A.2d at
796; D’Errico v. DeFazio, 763 A.2d 424, 431 (Pa. Super. Ct. 2000)).
Here, the undisputed evidence establishes that Defendant Moody
was not the principal actor. While Moody may have been present at the
scene of the alleged assault, plaintiff has not produced, nor does the record
reflect, any evidence that Moody caused or influenced the alleged assault.
Plaintiff cannot prove assault in the absence of such evidence, and
therefore, we will grant the casino defendant’s motion on plaintiff’s state law
assault claim. As we have already dismissed Count III with respect to the
Commonwealth defendants, we will now dismiss Count III in its entirety.
C. False Imprisonment
The casino defendants next move for summary judgment on Count
VI, plaintiff’s state law false imprisonment claim. Under Pennsylvania law,
an actor may be liable for false imprisonment if: (1) he acts intending to
confine the other or a third person within boundaries fixed by the actor; (2)
his act directly or indirectly results in such a confinement; and (3) the other

21

is conscious of the confinement or is harmed by it. Gagliardi v. Lynn, 285
A.2d 109, 1111 n.2 (Pa. 1971) (quoting Restatement (Second) of Torts
§ 35).
In the context of a seizure by a state officer, the plaintiff must
establish: (1) the detention of another person; and (2) the unlawfulness of
such detention. Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).
An arrest, or detention related to arrest, is unlawful if made without
probable cause, and “an arrest based upon probable cause would be
justified, regardless of whether the individual arrested was guilty or not.”7
Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. Ct. 2010) (quoting
Renk, 641 A.2d at 293). Probable cause exists “when the facts and
circumstances which are within the knowledge of the police officer at the
time of the arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief that the
suspect has committed or is committing a crime.” Renk, 641 A.2d at 293
(quoting Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991))
(internal quotation marks omitted).

7

Under Pennsylvania law, “false arrest and false imprisonment are
essentially the same actions.” Watson v. Witmer, 183 F. Supp. 3d 607, 617
(M.D. Pa. 2016) (citations and internal quotation marks omitted); Gagliardi,
285 A.2d at 111-112.
22

Here, plaintiff admits that Defendant Moody did not have authority to
arrest him and that Defendant Moody did not have any physical interaction
with him. (Pl.’s SOF ¶¶ 4, 6). Plaintiff has not produced, nor does the
record reflect, any evidence that Moody assisted State Police when they
escorted plaintiff off the dance floor and initially detained him. Although
plaintiff contends that all defendants agreed to unlawfully detain plaintiff in
order to cover up injuries caused by Defendant O’Brien, plaintiff’s
contentions are more applicable to his conspiracy claim against the casino
defendants rather than a false imprisonment claim. Moreover, plaintiff’s
evidence does not demonstrate how Moody intentionally acted to confine
plaintiff within boundaries fixed by Moody. Plaintiff cannot prove false
imprisonment in the absence of such evidence, and therefore, we will grant
the casino defendant’s motion on plaintiff’s state law false imprisonment
claim. As we have already dismissed Count VI with respect to the
Commonwealth defendants, we will now dismiss Count VI in its entirety.
D. Conspiracy
The casino defendants next move for summary judgment on Count
VIII, plaintiff’s state law conspiracy claim. As previously discussed, a
plaintiff pursuing a section 1983 conspiracy claim must prove the
Pennsylvania state law elements of a civil conspiracy. Dice, 711 F. Supp.
23

2d at 357 (citing Ammlung, 494 F.2d at 814). Because we have already
determined that the casino defendants are not entitled to summary
judgment on plaintiff’s section 1983 conspiracy claim, we will rely on our
analysis in Part II(B) above and deny the casino defendants’ motion with
respect to Count VIII, plaintiff’s state law conspiracy claim.
E. Malicious Prosecution
The casino defendants next move for summary judgment on Count
XII, plaintiff’s state law malicious prosecution claim. The first four elements
of a section 1983 malicious prosecution claim are the same as those under
Pennsylvania law. Kossler v. Crisanti, 564 F.3d 181, 186 n.2 (3d Cir.
2009). Having previously concluded that the casino defendants are entitled
to summary judgment on plaintiff’s section 1983 malicious prosecution
claim, we will rely on our analysis in Part II(C) above and grant the casino
defendants’ motion on plaintiff’s state law malicious prosecution claim. As
we have already dismissed Count XII with respect to the Commonwealth
defendants, we will now dismiss Count XII in its entirety.
F. Intentional Infliction of Emotional Distress
The casino defendants next move for summary judgment on Count
IX, plaintiff’s state law intentional infliction of emotional distress (hereinafter
“IIED”) claim. To establish a cause of action for IIED under Pennsylvania
24

law, “a plaintiff must prove that the defendant ‘by extreme and outrageous
conduct intentionally or recklessly cause[d] severe emotional distress.’”
Gray v. Huntzinger, 147 A.3d 924, 927 (Pa. Super. Ct. 2016) (quoting
Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988, 991 (Pa. 1987)
(citations omitted)). Moreover, “existence of the alleged emotional distress
must be supported by competent medical evidence.” Id. at 928 (quoting
Kazatsky, 527 A.2d at 995).
Here, Plaintiff has offered no evidence to establish how Defendant
Moody intentionally inflicted emotional distress upon him. He broadly avers
that Moody remained in the State Police office for approximately forty-five
minutes to one-and-one-half hours while plaintiff complained of ankle pain.
This averment alone, however, even when viewed in a light most favorable
to plaintiff, does not amount to extreme and outrageous conduct.
Moreover, plaintiff has produced no competent medical evidence of
emotional distress. Plaintiff cannot prove IIED in the absence of such
evidence, and therefore, we will grant the casino defendants’ motion on
plaintiff’s state law IIED claim. As we have already dismissed Count IX
with respect to the Commonwealth defendants, we will now dismiss Count
IX in its entirety.

25

G. Negligent Infliction of Emotional Distress
The casino defendants next move for summary judgment on Count X,
plaintiff’s state law negligent infliction of emotional distress (hereinafter
“NIED”) claim. Under Pennsylvania law, a cause of action for NIED is
restricted to four factual scenarios: (1) the defendant had a contractual or
fiduciary duty toward the plaintiff; (3) the plaintiff suffered a physical impact;
(3) the plaintiff was in the zone of danger, thereby reasonably experiencing
a fear of impending physical injury; or (4) the plaintiff observed a tortious
injury to a close relative. Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202,
217 (Pa. Super. Ct. 2012) (citing Toney v. Chester Cty. Hosp., 961 A.2d
192, 198 (Pa. Super. Ct. 2008), aff’d, 36 A.3d 83, 102-103 (Pa. 2011) (per
curiam)). To maintain such a claim, the plaintiff must also demonstrate a
physical manifestation of emotional distress. See Toney, 961 A.2d at 200
(citing Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. Ct. 1992).
Here, Plaintiff has offered no evidence to establish how Defendant
Moody negligently inflicted emotional distress upon him. Specifically, he
has failed to aver which NIED factual scenario applies to his claim, and he
has produced no medical evidence of a physical manifestation of emotional
distress. Plaintiff cannot prove NIED in the absence of such evidence, and
therefore, we will grant the casino defendants’ motion on plaintiff’s state law
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IIED claim. As we have already dismissed Count X with respect to the
Commonwealth defendants, we will now dismiss Count X in its entirety.
IV. Punitive Damages
Finally, the casino defendants move for summary judgment on
plaintiff’s punitive damages claim. In a section 1983 case, “[a] jury may
award punitive damages when it finds reckless, callous, intentional or
malicious conduct.” Springer v. Henry, 435 F.3d 268, 281 (3d Cir. 2006)
(citing Alexander v. Riga, 208 F.3d 419, 430-31 (3d Cir. 2000); Smith v.
Wade, 461 U.S. 30, 54-56 (1983)). “[T]he defendant’s conduct must be, at
a minimum, reckless or callous.” Id. (quoting Savarese v. Agriss, 883 F.2d
1194, 1204 (3d Cir. 1989)) (internal quotation marks omitted). “Punitive
damages might also be allowed if the conduct is intentional or motivated by
evil motive, but the defendant’s action need not necessarily meet this
higher standard.” Id. (quoting Savarese, 883 F.2d at 1204) (internal
quotation marks omitted).
Similarly, under Pennsylvania law, “punitive damages are an ‘extreme
remedy’ available in only the most exceptional matters.” Phillips v. Cricket
Lighters, 883 A.2d 439, 445 (Pa. 2005) (citations omitted). “Punitive
damages may be appropriately awarded only when the plaintiff has
established that the defendant has acted in an outrageous fashion due to
27

either the defendant’s evil motive or his reckless indifference to the rights of
others.” Id. (citation and internal quotation marks omitted).
At this juncture, viewing the evidence in a light most favorable to
plaintiff, plaintiff has produced evidence sufficient to establish punitive
damages. As explained above, a reasonable jury could believe plaintiff’s
testimony that, while he was handcuffed and shackled to a bench inside the
State Police office, Defendant State Trooper Thomas O’Brien threw him to
the ground and intentionally broke his ankle. A reasonably jury could
further believe that all defendants then agreed to fabricate the
circumstances of plaintiff’s injury and charge him with several criminal acts
arising out of those circumstances. At the very least, such conduct, if true,
is evidence of recklessness. As a result, we will deny the casino
defendant’s motion for summary judgment on plaintiff’s punitive damages
claim.
Conclusion
Based upon the above reasoning, we will grant the casino
defendants’ motion for summary judgment with respect to Counts I, II, III,
IV, V, VI, IX, X, XI, and XII. Furthermore, we will deny the motion with
respect to Counts VII, VIII, and XIII, as well as plaintiff’s punitive damages
claim. Thus, based upon our rulings on the Commonwealth and casino
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defendants’ motions for summary judgment, remaining in this case are the
following claims and parties: Count I, section 1983 excessive force claim
against the Commonwealth defendants; Count III, section 1983 assault
claim against the Commonwealth defendants; Count V, section 1983
unlawful arrest claim against the Commonwealth defendants; Count VII,
section 1983 conspiracy claim against the Commonwealth defendants and
Defendant Moody; Count VIII, state law conspiracy claim against
Defendant Moody; and Count XIII, vicarious liability claim against
Defendant Mount Airy Casino.8 An appropriate order follows.

Date: March 7, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

8

Plaintiff has named multiple John and Jane Doe casino employee
defendants. “Doe defendants ‘are routinely used as stand-ins for real
parties until discovery permits the intended defendants to be installed.’”
Hindes v. F.D.I.C., 137 F.3d 418, 155 (3d. Cir. 1998) (quoting Scheetz v.
Morning Call, Inc., 130 F.R.D. 34, 36 (E.D. Pa.1990)). Because plaintiff
failed to install named defendants for his “Doe defendant” stand-ins by the
court’s discovery deadline, November 30, 2015 (Doc. 34), we will also
dismiss John Doe Casino Defendants #1-25 and Jane Doe Casino
Defendants #1-25.
29