MINOR et al v. CUMBERLAND TOWNSHIP et al

Filing 72

ORDER. For the reasons stated in the Memorandum Order filed herewith, Defendants' Motion for Summary Judgment (Doc. 57 ) is GRANTED IN PART and DENIED IN PART. Specifically, the following Counts are DISMISSED with prejudice: Count II, Count III, Count XII, Count XIV and Count XVI. Count I and Count IV are DISMISSED insofar as they allege that Officer Miller engaged in excessive force against the Minor children and insofar as they allege that Officer Toothman engaged in excessive force. Defendants' Motion is DENIED in all other respects. Signed by Judge Cathy Bissoon on 6/27/17. (jwr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEPHANIE RENEE MINOR, et al,

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Plaintiffs,
v.
CUMBERLAND TOWNSHIP, et al,
Defendants.

Civil Action No. 13-1821
Judge Cathy Bissoon

MEMORANDUM ORDER
For the reasons stated below, Defendants’ Motion for Summary Judgment (Doc. 57) will
be GRANTED in part and DENIED in part.
I. MEMORANDUM
This civil rights law suit stems from events that occurred on October 19, 2012, when
Officers Russell Paul Miller, Jr. (“Officer Miller”) and Garrett Toothman (“Officer Toothman”),
(collectively, the “Officer Defendants”), police officers of the Cumberland Township Police
Department, entered the home of Plaintiffs Stephanie Renee Minor (“Ms. Minor”) and her three
minor children, L.M., B.J., and J.M (“the Minor children”) or (“the Children”). 1 See generally
Am. Compl. (Doc. 16). This entry led to Ms. Minor being handcuffed, arrested and charged with
various crimes, which ultimately were dismissed. See (Doc. 63-15).
Officers Miller and Toothman along with Cumberland Township (collectively,
“Defendants”) filed their first Motion to Dismiss on March 10, 2014, which the Court granted in

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Plaintiff L.M. died on September 7, 2015. See (Doc. 45-1). On February 5, 2016 the Court
ordered that the Estate of James Logan Minor be substituted as party for Plaintiff L.M. (Doc.
48). Any reference to all Plaintiffs hereafter includes the Estate of James Logan Minor instead
of Plaintiff L.M. Likewise, any reference to “the Minor children” or “the Children” includes the
Estate of James Logan Minor instead of Plaintiff L.M.
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part, dismissing various claims without prejudice to Plaintiffs filing an Amended Complaint.
Plaintiffs filed an Amended Complaint bringing various claims against the Officer Defendants in
their individual capacities, as well as Cumberland Township (the “Township”). (Doc. 21).
Defendants then filed a renewed partial Motion to Dismiss, which the Court again granted in
part, dismissing an additional claim. Defendants filed their answers shortly thereafter. (Doc.
22). The parties engaged in discovery and now, pending before the Court, is Defendants’ Motion
for Summary Judgment (Doc. 57).
FACTS
Many of the facts surrounding the events of October 19, 2012 are disputed; however, the
following facts are undisputed: After an argument with Lucas Cubic, an intern with the
Cumberland Township Police Department, James Jurczak left the Nemacolin Citizen’s Club, a
private bar in Nemacolin, Pennsylvania, and drove to his residence at 113 Bliss Avenue,
Nemacolin, Pennsylvania (“the Residence”). (Doc. 59) at ¶¶ 1, 6, 7, 8, 28; (Doc. 65) at ¶¶ 1, 6,
7, 8, 28. Officers Miller and Toothman of the Cumberland Township Police Department were in
a patrol car watching a stop sign near the Residence when Mr. Jurczak arrived home. (Doc. 59)
at ¶ 16; (Doc. 65) at ¶ 16.
Sometime thereafter, and after a series of disputed events that terminated with
Mr. Jurczak entering the Residence, Officer Miller approached the side door of the Residence
and banged on the door. (Doc. 59) at ¶ 35; (Doc. 65) at ¶ 35. Ms. Minor answered the door.
Officer Miller informed her that he was looking for Mr. Jurczak – though the precise language he
used to convey his point is in dispute – and in response Ms. Minor told Officer Miller that Mr.
Jurczak was not inside. (Doc. 59) at ¶¶ 41, 43; (Doc. 65) at ¶¶ 41, 43. Officer Miller then said
that “if Ms. Minor would not let him in the house, he would come in anyway.” (Doc. 59) at ¶ 45;

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(Doc. 65) at ¶ 45. Ms. Minor replied by saying “Like hell you are.” (Doc. 59) at ¶ 46; (Doc. 65)
at 46. Ms. Minor attempted to close the door to prevent Officer Miller’s entry into the home.
(Doc. 59) at ¶ 48; (Doc. 65) at ¶ 48. Whether and how much force she used in closing the door is
in dispute. (Id.) Officer Miller entered the home and followed Ms. Minor into a first-floor
bedroom. (Doc. 59) at ¶¶ 51, 52; (Doc. 65) at ¶¶ 51, 52. Officer Miller placed a handcuff on
Ms. Minor’s left wrist. (Doc. 59) at ¶ 56; (Doc. 65) at ¶ 56. “Ms. Minor placed her right arm
between her legs,” presumably to prevent him from handcuffing her other hand “and told Officer
Miller that ‘he wasn’t taking [her] to jail.’” (Doc. 59) at ¶ 57; (Doc. 65) at ¶ 57. The precise
series of events leading to Ms. Minor being fully handcuffed and placed under arrest are in
dispute, however, that Officer Miller eventually arrested and transported her to Greene County
Prison is not. Compare (Doc. 59) at ¶¶ 59-72 with (Doc. 65) at ¶¶ 59-72.
When Officer Miller approached the side door of the Residence, Officer Toothman went
to the rear of the Residence “to make sure that no one fled out the back.” (Doc. 59) at ¶ 34;
(Doc. 65) at ¶ 34. At some point thereafter, he entered the Residence. (Doc. 59) at ¶ 77; (Doc.
65) at ¶ 77. After entering the Residence, he went upstairs. (Doc. 59) at ¶ 80; (Doc. 65) at 80.
While in the upstairs of the house, Officer Toothman encountered Plaintiff B.J. (Id.) He also
went to the basement. (Doc. 59) at ¶ 81; (Doc. 65) at ¶ 81. When he returned to the first floor of
the house, Ms. Minor was already handcuffed. (Doc. 59) at ¶ 83; (Doc. 65) at ¶ 83. Officer
Toothman “did not have any physical contact with Ms. Minor during the [arrest] struggle.”
(Doc. 59) at ¶ 85; (Doc. 65) at ¶ 85.
Once Ms. Minor was in custody, Officer Toothman contacted Green County Children and
Youth Services (“CYS”) regarding the Children. (Doc. 59) at ¶ 87; (Doc. 65) at ¶ 87. Jamie
Imhoff, a caseworker for Greene County CYS came to the Residence. (Doc. 59) at ¶ 88; (Doc.

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65) at ¶ 88. Ms. Imhoff explained to Ms. Minor that CYS had to implement a safety plan
because there were no adults in the home to take care of the Children. (Doc. 59) at ¶ 90; (Doc.
65) at ¶ 90. Plaintiffs L.M. and J.M. stayed with their aunt and subsequently with their father.
(Doc. 59) at ¶¶ 93, 95, 96; (Doc. 65) at ¶¶ 93, 95, 96. Plaintiff B.J. stayed with her grandmother.
(Doc. 59) at ¶ 94; (Doc. 65) at ¶ 94. The Minor children returned home to the Residence on
December 13, 2012. (Doc. 59) at ¶ 100; (Doc. 65) at ¶ 100.
Officer Miller charged Ms. Minor with: aggravated assault (causing bodily injury to a
police officer); endangering the welfare of children; resisting arrest; obstruction of the
administration of law; and simple assault. (Doc. 59) at ¶ 101; (Doc. 65) at ¶ 101. Ms. Minor
was committed to the Greene County Prison at 5:30 a.m. on October 19, 2012, and released on
bail at or before 7:25 p.m. on the same day. (Doc. 59) at ¶ 105 2; (Doc. 65) at ¶ 105; (Doc. 5721). A Preliminary Hearing was held before Magistrate Judge Lee Watson on October 29, 2012,
and Judge Watson determined there was probable cause to hold over all charges for trial. (Doc.
59) at ¶ 106, 112; (Doc. 65) at ¶¶ 106, 112. Ms. Minor filed a petition for habeas corpus alleging
that “Officer Miller had no right to be in her house, [and that] any and all charges arising out of
his presence there at that time should be dismissed.” (Doc. 63-15) at 4. Pennsylvania Court of
Common Pleas President Judge William Nalitz granted the petition and dismissed all charges
against Ms. Minor. (Doc. 63-15) at 1. In doing so, President Judge Nalitz found that Officer
Miller had:
unlawfully and forcibly entered a private dwelling over the strong protests of the
householder, pursued her into her children’s bedroom, initiated physical contact with her,
and followed her to the floor when she fell, rolled her over, placed her in handcuffs in
front of her children and then took her to jail. At least he did not tase her. The charges
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Defendants’ Concise Statement of Material Fact states that Plaintiff was released on October
19, 2015. Plaintiffs do not dispute this. The police record, however, indicates the correct date is
October 29, 2012. See (Doc. 57-21).
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against Defendant [Stephanie Renee Minor] arose only because of and in reaction to
Officer Miller’s illegal invasion of her house.
(Id.) at 6.
STANDARD OF REVIEW
Summary judgment is appropriate if the moving party establishes “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). A dispute is “genuine” only if there is a sufficient evidentiary basis
for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might
affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s
Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, the Court must view
the facts in the light most favorable to the non-moving party. Merkle v. Upper Dublin Sch. Dist.,
211 F.3d 782, 788 (3d Cir. 2000).
ANALYSIS
Unlawful Entry
Defendants argue that there is no genuine issue of material fact as to Plaintiffs’ Fourth
Amendment claim for unlawful entry into Plaintiffs home and that both Officers Miller and
Toothman were legally justified in entering the Residence. (Doc. 62) at 6, 11. The Court will
address separately each Officer Defendant’s alleged justifications for entry into the Residence.
Officer Miller contends he was in “hot pursuit” of Mr. Jurczak, a fleeing felon, when he
entered the Residence, thus justifying his actions as a matter of law. “A warrantless home entry
is presumptively unconstitutional, but ‘exigent circumstances’ can excuse the warrant
requirement.” Kubicki v. Whitemarsh Twp., 270 Fed.Appx. 127, 128 (3d Cir. 2008) (citing
Welsh v. Wisconsin, 466 U.S. 740, 749–50, (1984)). “Exigent circumstances include, but are not
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limited to, hot pursuit of a suspected felon, the possibility that evidence may be removed or
destroyed, and danger to the lives of officers or others.” United States v. Coles, 437 F.3d 361,
366 (3d Cir. 2006) (emphasis added). Thus, whether Officer Miller was justified in the
warrantless entry of the Residence turns on whether he believed he was in hot pursuit of a fleeing
felon. If he believed Mr. Jurczak was fleeing a traffic stop for running a stop sign, he would not
have been legally justified to follow him into the Residence. However, if he believed Mr.
Jurczak was fleeing a DUI traffic stop, for example, he would have.
There exist substantial discrepancies regarding Officer Miller’s version of events. The
record evidence, read in the light most favorable to Plaintiffs, does not support Officer Miller’s
position that he had reason to believe Mr. Jurczak was intoxicated at the time of the alleged
traffic stop and, therefore, fleeing a DUI stop. Specifically, there is a dispute as to whether
Officer Miller had reason to believe Mr. Jurczak was driving while intoxicated. Compare (Doc.
59) at ¶ 23 (Officers Miller and Toothman both testified in depositions for this matter that they
discussed the contents of Mr. Cubic’s call with Officer Toothman after the call was completed)
with (Doc. 63-8) at 13-14 (Officer Miller testified at Ms. Minor’s Preliminary Hearing that he
and Officer Toothman did not discuss the call between Officer Toothman and Mr. Cubic).
On the one hand, Officer Miller’s police incident report states that “Patrolman G.
Toothman received a telephone call from Lucas Cubic in regard to James Jurczak, James Jurczak
had been drinking heavily and was causing problems to the point that the Nemacolin Citizens
Club requested that he leave. Lucas Cubic informed Patrolman G. Toothman that he was
intoxicated.” (Doc. 57-9) at 6.
However, Officer Miller testified inconsistently at the Preliminary Hearing:
Q: So the hot pursuit that you were in was for a stop sign summary offense?
A: I had an individual fleeing a motor vehicle in a traffic stop.
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Q: But the traffic stop was a summary offense?
A: It was a summary offense.
…
Q: You had no other evidence of any other crime; correct?
A: Not at that point.
(Doc. 63-8) at 21. As noted above, if Officer Miller did not have reason to believe that
Mr. Jurczak was fleeing an attempted DUI stop, but rather fleeing a summary offense, he would
not have been justified in pursuing him into the Residence.
Moreover, there is a dispute as to whether Mr. Jurczak was even “fleeing,” as there are
inconsistencies in the location of the Officer Defendants’ vehicle relative to Mr. Jurczak when
they attempted to effectuate the traffic stop, and inconsistencies as to whether and when the
Officer Defendants activated lights and sirens. Compare (Doc. 59) at ¶¶ 25-27 with (Doc. 65) at
¶¶ 25-27.
In light of this background, the Court must find that there are genuine issues of material
fact as to whether Officer Miller violated the Fourth Amendment rights of Ms. Minor and her
Children when he forced himself into the Residence on October 19, 2012.
The analysis as to Officer Toothman’s conduct differs slightly. Again, Defendants rely
on the exigent circumstances exception in order to justify the warrantless entry into the home.
Id. at 11 (citing Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir. 1996) (“Concern for safety of
others usually is a valid type of exigent circumstances.”) Defendants argue that “Officer
Toothman had an objectively reasonable belief that someone was in imminent danger.” (Doc.
62) at 11. As supporting evidence, Defendants claim that “Officer Toothman had reliable
information that Mr. Jurczak was intoxicated,” that Officer Toothman had probable cause to
believe that Mr. Jurczak “was attempting to flee from the police” and that “Officer Toothman
heard a physical struggle coming from inside the house.” (Id.) Plaintiffs dispute both Defendant

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Toothman’s credibility and that this explanation justifies Defendant Toothman’s actions. (Doc.
59) at ¶¶ 75-77; (Doc. 65) at ¶¶ 75-77.
The Court agrees with Plaintiffs that this ultimately boils down to a question of Officer
Toothman’s credibility. Questions of a key witnesses’s credibility must be left to a fact-finder to
decide. Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (“In considering a
motion for summary judgment, a district court may not make credibility determinations or
engage in any weighing of the evidence; instead, the non-moving party’s evidence is to be
believed and all justifiable inferences are to be drawn in his favor.”) (internal quotations and
citations omitted). Therefore, summary judgment as to whether Officer Toothman violated
Plaintiffs’ Fourth Amendment rights when he entered the Residence will be denied.
Accordingly, the Officer Defendants’ Summary Judgment Motion will be denied as to
Counts I, II and VI in so far as they allege unlawful entry in violation of the Fourth Amendment.
Excessive Force
As to Counts I and IV, Ms. Minor and J.M. claim that the Officer Defendants violated
their Fourth Amendment right to be free from excessive force. As a preliminary matter, the
Court agrees with Defendants that Ms. Minor’s excessive force claims against Officer Toothman
and those on behalf any Minor children are without evidentiary support. (Doc. 62) at 16. Ms.
Minor herself testified that Officer Toothman “did nothing wrong.” (Doc. 59) at ¶ 86.
Moreover, there is no evidence in the record to support the position that any of the Children were
physically injured, ((Doc. 59) at ¶¶ 62-63), nor does Plaintiffs’ brief make any argument as to
whether the Officer Defendants used any, let alone excessive, force against the Minor children.
(Doc. 65) at 13-14.

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Accordingly, Counts I and IV will be dismissed insofar as they relate to the use of
excessive force by Officer Toothman and the use of excessive force against any Minor children.
The question remains whether sufficient evidence exists in the record from which a
reasonable jury could conclude that Officer Miller utilized excessive force during the course of
his interactions with Ms. Minor. Defendants do not dispute that Officer Miller utilized force, just
whether the amount of force used was reasonable under the circumstances. After a thorough
review of the record, the Court finds disputes of material fact as to Officer Miller’s use of force
against Ms. Minor. As the Court stated earlier, the precise series of events leading to Ms. Minor
being fully handcuffed and placed under arrest are in dispute, including how Ms. Minor behaved
during her interaction with Officer Miller and how much force Officer Miller employed.
Compare (Doc. 59) at ¶¶ 59-72 with (Doc. 65) at ¶¶ 59-72. Accordingly, whether Officer Miller
use of force against Ms. Minor was excessive under the circumstances is a question of fact and
not appropriate for resolution at summary judgment. Summary Judgment will be granted on
Counts I and IV as to excessive force against Officer Toothman and on behalf of the Minor
children, but denied as to Officer Miller’s interactions with Ms. Minor.
Cumberland Township’s Liability
Count II alleges Cumberland Township is liable for the Officer Defendants’ alleged
misconduct through a theory of Monell liability. See Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978). Such a claim cannot be based on a theory of
respondeat superior. Id. at 694.
Local governing bodies … can be sued directly under § 1983 for monetary, declaratory,
or injunctive relief where … the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers. Moreover, although the touchstone of the § 1983
action against a government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution, local governments, like every other
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§ 1983 “person,” by the very terms of the statute, may be sued for constitutional
deprivations visited pursuant to governmental “custom” even though such a custom has
not received formal approval through the body’s official decisionmaking channels.
Id. at 690–91.
Plaintiffs make three separate arguments as to why Cumberland Township should be
liable for the alleged misconduct of its officers: (1) through formal acts and informal customs
((Doc. 65) at 9), (2) by a failure to train and/or supervise (id. at 10), and (3) through a failure to
adopt adequate screening measures in hiring. (Id. at 12.) There simply is insufficient evidence
in the record from which a reasonable jury could impugn Monell liability based on any of
Plaintiffs’ theories.
Plaintiffs point to the Township’s “formal policy of limiting the use of force log to
incidents involving a Taser” as a policy or custom that creates the municipal liability. (Doc. 65)
at 9. This means that any use of force that does not involve a Taser would not be logged.
However, during his deposition, Chief Miller indicated that electronic recordkeeping for all
police reports obviated the need for separate use of force logs and that an incident involving
officer force would be recorded in the official police report. (Doc. 63-13) at 5-7. Furthermore,
Plaintiffs offer nothing of substance to explain why limiting use of force logs to Taser
deployment would increase the likelihood that officers would engage in instances of excessive
force.
Also, Plaintiffs fail to point to evidence establishing Monell liability premised on a
failure to train theory. “[T]he inadequacy of police training may serve as a basis for Section
1983 liability only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388
(1989). Though, “as a general rule, an isolated incident, however unfortunate, does not

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demonstrate evidence of [an agency’s] persistent and widespread policy and will not be
considered so pervasive as to be a custom or practice.” Thomas v. Bd. of Educ. of Brandywine
Sch. Dist., 759 F. Supp. 2d 477, 492 (D. Del. 2010); Berg v. Cnty. of Allegheny, 219 F.3d 261,
276 (3d Cir. 2000) (holding that failing to adequately supervise, monitor, or train employees
“can ordinarily be considered deliberate indifference only where the failure has caused a pattern
of violations”). Furthermore, as the Court of Appeals for the Third Circuit has held, “[t]he mere
failure of supervisory officials to act or investigate cannot be the basis of liability.” Stoneking v.
Bradford Area School District, 882 F.2d 720, 730 (3d Cir. 1989).
Here, there is no evidence that a failure to train resulted in these violations. Officer
Defendants completed all Act 120 state-required training before joining the force and all Act 180
Mandatory Police Education and Training Commission annual training. (Doc. 57-5) at 7; (Doc.
57-8) at 5. Plaintiffs argue that, had the Officers participated in training in hot pursuit and the
prohibition against entering a home without justification, the entire incident could have been
avoided. (Doc. 65) at 12. However, “a mere showing that a particular officer violated policy, or
that better training would have enabled the officer to avoid the injury-causing conduct, is
insufficient to establish a municipality’s liability under § 1983 for failure to train.” Marable v.
W. Pottsgrove Twp., 176 F. App'x 275, 283 (3d Cir. 2006) (citing Simmons v. City of Phila., 947
F.2d 1042, 1060 (3d Cir.1991)). “Only when a municipality’s failure to train is tainted by a
deliberate indifference to constitutional rights can that failure rise to the level of a municipal
policy or custom – that is, a deliberate choice to follow a course of action made from among
various alternatives by city policymakers.” Simmons, 974 at 1060 (citing City of Canton, 489
U.S. at 389-90)) (internal citations omitted). Without more, the Court cannot find that a

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reasonable trier of fact could conclude that the Township’s failure to train gives rise to Monell
liability.
Plaintiffs also imply that judicial opinions finding “significant constitutional violations”
committed by members of the Cumberland Township Police Department – and Cumberland
Township seemingly dragging its feet to implement needed corrections – establish a settled
custom or policy that the Township “has failed to protect the constitutional rights of the citizens
of Cumberland Township from the transgressions of the officers that the Township employs.”
(Doc. 65) at 10. However, in order for a court to find a pattern or practice sufficient to establish
a formal or informal custom, Monell requires a plaintiff articulate how the conduct is sufficiently
similar to establish the pattern. See Connick v. Thompson, 563 U.S. 61, 62 (2011) (“A pattern of
similar constitutional violations by untrained employees is ordinarily necessary to demonstrate
deliberate indifference for purposes of failure to train.”) (internal citations and quotations
omitted) (emphasis added); Berg v. County of Allegheny, (examining whether the County
defendant had sufficient procedures to guard against mistakenly issued warrants and concluded
that a reasonable trier of fact could determine that such procedures were lacking); c.f. Noone v.
City of Ocean City, 60 F.App’x 904, 910 (3d Cir. 2003) (“No reasonable safeguards have been
identified that Municipal Defendants could have instituted to protect against the type of error that
occurred here.”); Marable, 176 Fed.Appx. at 283 (“Nor is there any evidence in the record of a
pattern of mishandling of minors by the municipal defendants.”) Here, Plaintiffs provide no
specifics about the judicial opinions with which Defendants allegedly failed to comply. The
Court has no basis from which to conclude that the facts in those cases were sufficiently similar
to these in order establish repeated flagrant disregard under similar circumstances.

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Finally, Plaintiffs claim that the Township failed in its hiring practices, because, among
other things, Officer Miller and Toothman’s job applications were “dangerously inadequate.”
(Doc. 65) at 12. Plaintiffs state:

(Id.)

Had Cumberland Township taken a more thorough approach to the application process,
they would have made certain to hire police officers with the appropriate basic
knowledge necessary to accomplish their duties without trampling upon the rights of the
citizens of Cumberland Township.
“[A] finding of culpability simply cannot depend on the mere probability that any officer

inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding
that this officer was highly likely to inflict the particular injury suffered by the plaintiff.” Bd. of
the County Comm’rs v. Brown, 520 U.S. 397, 412, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)
(emphasis in original). “The connection between the background of the particular applicant and
the specific constitutional violation alleged must be strong” and the subsequent constitutional
violation must be “a plainly obvious consequence of the hiring decision.” Id. “Courts that have
addressed Brown have consistently interpreted it to mean that municipal liability for negligent
hiring based on a single hiring decision requires the threat identified in an applicant’s
background to be basically identical to the harm eventually caused by the applicant.” M.S. ex
rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 426-27 (M.D. Pa. 2014) (Kane, J.)
(collecting cases).
Here, Plaintiffs have provided no evidence that it was plainly obvious to the Township
that hiring the Officer Defendants would result in deprivation of Plaintiffs’ constitutional rights.
Without such evidence, the Court cannot find that a reasonable jury could conclude that the
Township so failed in its hiring duties as to justify the imposition of Monell liability.

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The Court acknowledges the high standard established by the Supreme Court to show
Monell liability. Plaintiffs simply have not met that standard. If indeed Plaintiffs prove at trial
that the Officer Defendants violated Plaintiffs’ constitutional rights, the actions of the Officer
Defendants cannot be properly attributed to the Township under a theory of Monell liability.
Due Process Violation
Count III alleges a claim for deprivation of due process relating to the removal of the
Minor children following the events of October 19, 2012. 3 Substantive due process is violated
when the action in question “can properly be characterized as arbitrary, or conscience shocking,
in a constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). This
allegation hinges on whether Officers Miller and Toothman acted objectively reasonably under
the circumstances. Defendants argue that CYS, not Defendants, made the ultimate decision as to
where the children should be placed and whether to remove them from their home and that
Defendants called CYS because they had arrested Ms. Minor and no other adult remained in the
Residence. (Doc. 62) at 14-15.
Plaintiffs argue that Defendants Miller and Toothman “started a chain of events which
directly resulted in the unnecessary placement of Ms. Minor’s children in the dependency
system,” (Doc. 65) at 13; however, that alone is not dispositive. There is no dispute that
Defendants arrested Ms. Minor. There is no dispute that once Ms. Minor was taken into custody
no adult remained at the residence capable of caring for the Minor children. Despite the

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Defendants move for summary judgment arguing that Plaintiffs’ have failed to show how their
conduct violated Plaintiffs’ procedural due process rights. Plaintiffs’ argue in their briefing that
Defendants’ conduct violated their substantive due process rights, though they cite to case law
dealing with both substantive and procedural due process standards. The allegations in the
Amended Complaint could be read to state violations of both substantive and procedural due
process violations. Regardless, based on the Court’s analysis, Plaintiffs would be unable to
succeed on either theory of due process.
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questions surrounding the legality of the entry into the Residence and the justification for Ms.
Minor’s arrest, once the Officer Defendants made the decision to arrest Ms. Minor, the phone
call to CYS was objectively reasonable under the circumstances. Accordingly, the Court finds
that no due process violation occurred when the Defendant Officers called CYS to take custody
of the Minor children following the arrest of Ms. Minor. Defendants are correct that, for
purposes of determining a constitutional violation, any subsequent decisions by CYS cannot be
appropriately attributable to the Officer Defendants. The Court will grant summary judgment as
to Count III. 4
Federal False Arrest and Malicious Prosecution
Counts V and VII allege claims for false arrest and malicious prosecution pursuant to
Section 1983. The Fourth Amendment prohibits a police officer from arresting a citizen except
upon probable cause. Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d. Cir. 1995) (citing
Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). A court examining a Section
1983 claim for false arrest examines “not whether the person arrested in fact committed the
offense but whether the arresting officers had probable cause to believe the person arrested had
committed the offense.” Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988) (emphasis
added).
To prevail on a claim of malicious prosecution under §1983, a plaintiff must establish
that: (1) defendant initiated a criminal proceeding; (2) the proceeding was initiated without
probable cause; (3) the criminal proceeding ended in plaintiff’s favor; (4) defendant acted
maliciously or for a purpose other than bringing the plaintiff to justice; and (5) plaintiff suffered

4

While not a separate due process violation, the Court finds the circumstances involving CYS
and Ms. Minor’s separation from her children will indeed be relevant as to what damages
Plaintiffs sustained should they succeed at trial on the remaining counts.
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deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (emphasis added). Thus,
the absence of probable cause is an essential element in both a malicious prosecution and a false
arrest claim, and such claims cannot proceed if probable cause existed—regardless of whether
the arrest at issue was a wise or typical use of police resources. See Dowling, 855 F.2d at 141.
Moreover, the Court concludes that sufficient evidence exists in the record from which a trier of
fact could conclude that the other essential elements have been met.
In order for the police to have properly arrested Ms. Minor, they must have had probable
cause on one of the following charges: aggravated assault, causing bodily injury to a police
officer; endangering the welfare of children, obstruction of the administration of law, or simple
assault. “This is because the resisting arrest charge could not have provided probable cause for
the arrest ab initio.” Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995).
Thus, due to the uncertainty of the facts and the need for a finder of fact to make credibility
determinations as to which parties’ version of events rings most true, the Court will deny
Defendants Motion for Summary Judgment as to Counts V and VII.
Qualified Immunity
The Officer Defendants assert qualified immunity as a defense as to all of Plaintiffs’
Section 1983 claims. (Doc. 62) at 24.
A court required to rule upon the qualified immunity issue must consider, then, this
threshold question: Taken in the light most favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct violated a constitutional right? This must be
the initial inquiry. If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified
immunity. On the other hand, if a violation could be made out on a favorable view of the
parties’ submissions, the next, sequential step is to ask whether the right was clearly
established.

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Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the Court concluded that there are questions
of fact as to whether Plaintiffs’ constitutional rights have been violated, the only issue to decide
is whether the rights were clearly established at the time the alleged violations occurred. There
can be no question here that the particular constitutional rights at issue, namely the Fourth
Amendment rights to be free from unreasonable unlawful entry by an officer into a residence and
to be free from an officer’s use of excessive force, were clearly established at the time the
Officers engaged in this conduct. Therefore, the Officer Defendants cannot take advantage of
the protections of qualified immunity.
Claims Under Pennsylvania Law
In addition to their federal claims, Plaintiffs allege a number of violations of
Pennsylvania law. Specifically, Ms. Minor alleges assault, battery, false arrest and false
imprisonment, trespass, intentional infliction of emotional distress (“IIED”), invasion of privacy
(entry into the home), malicious prosecution and civil conspiracy. Moreover, the Minor children
join in the assault and invasion of privacy (entry into the home) claims and Plaintiff J.M. also
alleges IIED.
A police officer may be held liable for assault and battery when the force used in making
an arrest is unnecessary or excessive. Renk v. City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289,
293 (1994); Mills v. City of Harrisburg, 350 Fed.Appx. 770, 774 (3d Cir.2009); DeBellis v.
Kulp, 166 F.Supp.2d 255, 279 (E.D.Pa.2001). As the Court has found that genuine questions of
fact and credibility exist as to Plaintiff Stephani Minor’s excessive force claims, similar
questions of fact and credibility exist as to her assault and battery claims. However, the same
cannot be said for the claims on behalf of the Minor children. There is insufficient record
evidence from which a reasonable jury could conclude that any of the Minor children suffered

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from the intentional tort of assault by the Officer Defendants. Renk, 641 A.2d at 293 (“Assault
is an intentional attempt by force to do an injury to the person of another…”).
Much like their federal counterparts, claims for false arrest, false imprisonment, and
malicious prosecution under Pennsylvania law each require a lack of probable cause. Mills, 350
Fed.Appx. at 774; Murphy v. Bendig, 232 Fed.Appx. 150, 153 (3d Cir.2007); Sheedy v. City of
Philadelphia, 184 Fed.Appx. 282, 284 (3d Cir.2006). Given the Court’s conclusion that genuine
issues of material fact preclude a grant of summary judgment as to the federal false arrest and
malicious prosecution claims, the same conclusion must hold for the corresponding Pennsylvania
claims. Accordingly, the Court will deny summary judgment on Counts X and XIII.
Just as the Court’s analysis of assault and battery depends on its prior analysis of
excessive force, so too does its analysis of trespass turn on its prior analysis of the Officers
unlawful entry into the Residence. And thus, because the Court has found that genuine questions
of material fact exist as to Ms. Minor’s unlawful entry claim, similar questions of fact and
credibility exist as to Ms. Minor’s trespass claim. Therefore, Defendants’ Motion for Summary
Judgment will be denied as to Counts VII, IV, X, and XI.
“Recovery for the tort of [IIED is] reserved by the courts for only the most clearly
desperate and ultra extreme conduct.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). In
Pennsylvania, in order to establish a claim for IIED, a plaintiff must establish the following four
elements: (1) extreme and outrageous conduct, (2) which is intentional or reckless; (3) it must
cause emotional distress, and (4) that distress must be severe. See Hoy v. Angelone, 691 A.2d
476, 482 (Pa. Super. 1997). To establish a claim for IIED, “the conduct must be so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

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regarded as atrocious, and utterly intolerable in a civilized society.” Hoy, 720 A.2d at 754
(quoting Buczek v. First Nat'l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987)).
Cases which have found a sufficient basis for a cause of action of intentional infliction of
emotional distress have ... presented only the most egregious conduct. See [,] e.g.,
Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970) (defendant, after striking and killing
plaintiff’s son with automobile, and after failing to notify authorities or seek medical
assistance, buried body in a field where discovered two months later and returned to
parents […]); Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa. Super. 1981)
(defendants intentionally fabricated records to suggest that plaintiff had killed a third
party which led to plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles
Football Club, 595 F.2d 1265 (3d Cir.1979) (defendant’s team physician released to press
information that plaintiff was suffering from fatal disease, when physician knew such
information was false).
Id. at 754.
While the facts at issue here, if true, represent unacceptable conduct by public officials
who hold positions of trust; the facts are simply not “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society” as that standard has been used by courts applying
Pennsylvania law. Id. Therefore, Defendants’ Motion for Summary Judgment as to Count XII
will be denied.
Count XIV alleges that the Officer Defendants committed the intentional tort of Invasion
of Privacy (Entry Into the Home) when they entered the Residence on the night in question.
Pennsylvania recognizes a cause of action for tortious ‘intrusion upon seclusion.’ […]
The tort may occur by (1) physical intrusion into a place where the plaintiff has secluded
him or herself […] Liability attaches only when the intrusion is substantial and would be
highly offensive to ‘the ordinary reasonable person.’
Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 620-21 (3d Cir. 1992) (citing Marks v. Bell
Telephone Co., 331 A.2d 424, 430 (Pa. 1975) and Harris by Harris v. Easton Publishing Co., 483
A.2d 1377, 1383-84 (Pa. Super. 1984)). Neither Defendants nor Plaintiffs have sufficiently
explained to the Court how these facts do or do not meet this standard. Defendants focus on how
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this claim is barred by the Pennsylvania Municipal Tort Claims Act or that the Officers were
privileged to enter the Residence. (Doc. 62) at 30. Plaintiffs dispute that. (Doc. 65) at 21. As
such, neither party has pointed to any case law – and the Court can find none – where a court has
held that, under Pennsylvania law, a violation of an individual’s Fourth Amendment right
constitutes the tort of Invasion of Privacy/ Intrusion Upon Seclusion. Moreover, the tort must be
intentional and there is no record evidence that either Officer Defendant possessed the requisite
intent to commit such a tort. Accordingly, Defendants’ Motion for Summary Judgment will be
granted as to Count XIV.
In Count XVI, Ms. Minor claims Officers Miller and Toothman conspired with one
another to commit acts against her including violating her rights under the Constitutions and
statues of the United States and the Commonwealth of Pennsylvania and Pennsylvania laws. “A
cause of action for conspiracy requires that two or more persons combine or enter an agreement
to commit an unlawful act or to do an otherwise lawful act by unlawful means.” Burnside v.
Abbot Laboratories, 505 A.2d 973, 980 (Pa. Super 1985). “Conspiracy may be proved by direct
or by circumstantial evidence.” Rosenblum v. Rosenblum, 181 A. 583, 583 (Pa. 1935). “While
conspiracy may be proved by circumstantial evidence, the evidence must be full, clear and
satisfactory.” Fife v. Great Atl. & Pac. Tea Co., 52 A.2d, 24, 27 (Pa. 1947).
While Plaintiff has pointed to sufficient questions of material fact as to the underlying
offenses which she claims form the basis of the civil conspiracy, she has not pointed to any
record evidence – direct or circumstantial – from which a finder of fact could conclude that the
Officer Defendants did, in fact, conspire to commit an act by unlawful means. Plaintiffs’
narrative, that:
the Officers engaged together in a pursuit of their target for whom they laid in wait for
nearly an hour. When they were unable to catch him, the two officers engaged in a
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coordinated attack on the Plaintiff’s home. While Officer Miller restrained Ms. Minor,
Officer Toothman performed an illegal search of the home
((Doc. 65) at 23), lacks any support in the record. (Doc. 65) at 23. At this stage in the litigation,
the Court requires more than mere allegations and speculation to find that a reasonable jury
could conclude that the Officer Defendants conspired with one another to violate Pennsylvania
law or violate Ms. Minor’s constitutional rights. Accordingly, Defendants’ Motion for Summary
Judgment as to Plaintiffs’ Civil Conspiracy claim, Count XVI, will be GRANTED.
II. ORDER
Consistent with the foregoing, Defendants’ Motion for Summary Judgment (Doc. 57) is
GRANTED IN PART and DENIED IN PART. Specifically, the following Counts are
DISMISSED with prejudice: Count II, Count III, Count XII, Count XIV and Count XVI. Count
I and Count IV are DISMISSED insofar as they allege that Officer Miller engaged in excessive
force against the Minor children and insofar as they allege that Officer Toothman engaged in
excessive force. Defendants’ Motion is DENIED in all other respects.
IT IS SO ORDERED.
June 27, 2017

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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