MCGUIRE v. CITY OF PITTSBURGH et al
Filing
60
MEMORANDUM OPINION & ORDER denying 47 MOTION for Summary Judgment filed by COLBY J. NEIDIG and granting 50 MOTION for Summary Judgment filed by CITY OF PITTSBURGH. Signed by Judge Mark A. Kearney on 11/3/2016. (ept)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION
SHANE MCGUIRE
v.
NO.
14-1531
CITY OF PITTSBURGH, et al
KEARNEY,J.
November 3, 2016
MEMORANDUM
Relying upon the Fourth Amendment, citizens place justified trust in our police officers'
restraint in not applying excessive force during an arrest.
officers by their uniform, badge or announced role.
We generally recognize our police
Today, we address the potential liability of
an off-duty officer initially concealing his police role who allegedly chased and then beat up a
teenager smashing pumpkins and ringing the doorbell at the officer's family home.
After the
alleged excessive force, the off-duty officer admitted his public service role when asking a
neighbor to call a police station to pick up the apprehended young man.
After discovery, there
are several genuine issues of material fact regarding whether the off-duty officer acted under
color of state law.
While a jury must determine whether the off-duty officer acted under color
of state law, we find no basis for supervisory liability upon the City of Pittsburgh as his employer
who trained him on excessive force.
We deny the officer's motion for summary judgment and
grant the City's motion.
I.
Facts in the light most favorable to Mr. McGuire. 1
While walking through a residential neighborhood with his friends indiscriminately
smashing pumpkins, sixteen-year-old Shane McGuire walked into the unlit porch of a house
unknown to him and smashed a pumpkin. 2
the front door. 3
McGuire's friends stacked a pyramid of bricks by
McGuire and his friends crossed the street and hid as they saw a car driving
toward them. 4
Colby Neidig, an off-duty police officer for the Pittsburgh Bureau of Police, with his wife
and 13-month-old son, arrived home after grocery shopping to see at least two smashed
pumpkins on his property and a brick pyramid by his front door. 5
After pulling into their garage, the Neidigs walked around to the front of their home. 6
Although the bricks concerned Officer Neidig, the pumpkins did not. 7 He remarked to his wife,
"I really can't be mad about the pumpkins because I was a kid once." 8 After a brief discussion
about the bricks, the couple walked back to the garage to take the groceries inside. 9
Watching across the street, McGuire's friends urged him to ring the Neidigs' doorbell. 10
McGuire ran up to the house, pressed the doorbell a few times, but did not hear a response. 11
When he turned to run back, McGuire tripped over the pyramid of bricks. 12
Back in his garage, Officer Neidig heard a loud noise coming from the front door
followed by the sound of his wife's loud footsteps and yelling. 13
like she was in a panicked state." 14
yard away from his front door area. 15
He testified his wife "sounded
He took a step back and saw a male running through his
Officer Neidig--dressed in plainclothes and without his
badge, firearm, or handcuffs-chased after McGuire. 16
Officer Neidig testified he saw McGuire as a "potential burglar who tried to break into
my home" 17 and he "wanted to get the guy I thought tried to break into my home." 18
"The
thought come into mind that a guy just tried to break into my home and I wanted to catch him.
I didn't want my family to worry everyday who that individual might have been." 19
2
McGuire, now joined by some friends, continued running away. 20
for them to stop and shouted an expletive. 21
While stepping over the crest of a hill, McGuire
slipped on mud, landing about halfway down the hill. 22
Neidig's silhouette at the top of the hill. 23
Officer Neidig yelled
McGuire looked up and saw Officer
While looking down, Officer Neidig said, "I should
shoot your ass. " 24
McGuire got up and continued running down the hill and into the woods. 25
running in the woods, Officer Neidig asked McGuire where he is from. 26
"lower Munhall." 27
While
McGuire responded,
Officer Neidig responded, "So you're one of those basketball thugs." 28
Officer Neidig told McGuire to stop a couple more times, but McGuire continued running. 29
Eventually, McGuire ran back onto a road, with Officer Neidig still pursuing him. 30
McGuire continued running about 50 more yards on the road until he was "completely
gassed. " 31
McGuire stopped, put his hands above his head to catch his breath, and said to
Officer Neidig, "Hey, sorry, man.
Sorry about the pumpkins.
Don't hurt me, man. " 32
Officer Neidig, about 40 to 50 yards away, responded, "Yeah I won't hurt you."33
While McGuire stood straight up with his hands above his head, Officer Neidig jogged
over to him, grabbed him by the chest, and tackled him to the asphalt. 34
Officer Neidig
straddled McGuire "like an MMA fighter" and punched McGuire in the nose three or four
times. 35 McGuire testified he never tried to punch back, but only tried to defend himself from
the punches. 36
After the first few punches, Officer Neidig stated, "You think you can out run a
39-year-old who works in Wilkinsburg?"37
Upon hearing this, McGuire realized he should not
hit Officer Neidig because he is a police officer. 38
3
Officer Neidig testified he said at some point
he said, "I deal with worse fuckers than you in Homewood."39
Officer Neidig then grabbed McGuire by the throat, choking him, and asked for his
name. 40
McGuire responded, "I can't say anything with your hands around my throat." 41
As
soon as Officer Neidig took off his hands, he struck McGuire with his head and continued
punching him five or six more times. 42
Officer Neidig then stood up, grabbed McGuire by the hood of his sweatshirt, and walked
up the street with McGuire in hand. 43
While walking, McGuire asked, "Are you a cop?"44
Officer Neidig responded, "What do you think?"45
Officer Neidig continued until he reached a house about 50 or 60 yards away. 46
After
Officer Neidig sat McGuire down on the stoop, he rang the doorbell, introduced himself as an
off-duty police officer, and stated, "I need you to call 9-1-1.
I have a vandal in custody."47
McGuire again asked Officer Neidig if he is a police officer, and Officer Neidig responded,
"What do you think?"48
McGuire stated he needed to call his father, but Officer Neidig told
him to wait until the police arrived. 49
McGuire's nose bled heavily. 50
After waiting about 20 to 30 minutes, Officer Neidig went to the door and asked for the
phone. 51
Outside of McGuire's presence, Officer Neidig called 911 and identified himself as an
off-duty police officer, hoping to get a quicker response. 52
paramedics treated McGuire on the scene. 53
An ambulance arrived, and
A police patrol car arrived shortly afterwards. 54
The Commonwealth charged McGuire with four crimes as a juvenile: 1) loitering and
prowling at night, 2) criminal mischief, 3) harassment; and 4) criminal conspiracy. 55
The
Commonwealth withdrew the harassment charge, but the parties dispute whether the
Commonwealth withdrew the remaining charges.
4
The City's Office of Municipal Investigation investigated Officer Neidig's conduct, but it
did not complete its report or come to any firm conclusions. 56
The investigator claims she did
not finish the report because McGuire did not cooperate, which is factually disputed. 57
The
unfinished report, however, states: a) if Officer Neidig had been acting as a police officer, he had
reasonable suspicion to detain McGuire; and b) if Officer Neidig had been acting as a private
citizen, he did not have the right to arrest McGuire because he did not "personally observe"
McGuire committing a crime. 58
The report did not make any express conclusions as to the
propriety of Officer Neidig's conduct, but stated, "If PO Neidig did not have a legal right to
detain Shane, it would be a violation of 16.l Standards of Conduct; 3 .1 Obedience to Orders
and/or Laws." 59
McGuire sued Officer Neidig, the City of Pittsburgh, and another police officer for claims
under the United States Constitution and state law. 60 We granted Defendants' partial motion to
dismiss in part, dismissing McGuire's state law claims for malicious prosecution and false arrest,
and dismissing his § 1983 claims for failure to intervene, conspiracy, false arrest, and malicious
.
prosecut10n.
61
McGuire's remaining claims are state law claims for assault and battery and a § 1983
excessive force claim.
The only claim remaining against the City is a § 1983 supervisory
liability claim.
II.
Analysis
The City moved for summary judgment, and Officer Neidig moved for partial summary
judgment on the § 1983 claim. 62
5
A. We deny Officer Neidig's motion for summary judgment on McGuire's § 1983
claim.
Officer Neidig argues he is not liable under § 1983 because McGuire failed to produce
evidence he committed the alleged misconduct under color of law.
McGuire counters Officer
Neidig 's conduct is consistent with that of a police officer.
Officer Neidig is not liable under § 1983 unless he committed the alleged misconduct
"under color of state law." 63
For liability under the Constitution, his alleged misconduct must
have involved "state action." 64 "The "under color of state law" analysis is equivalent to the "state
action" analysis." 65 McGuire has the burden of proving Neidig acted under color of law. 66
"It is well settled that an otherwise private tort is not committed under color of law
simply because the tortfeasor is an employee of the state. " 67
Rather, an off-duty police officer
like Officer Neidig must have committed the alleged misconduct "under pretense of law," 68 and
his conduct "must entail 'misuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law. "' 69 We must determine
whether Officer Neidig "abused a power or position granted by the state" 70 such that his conduct
"can be fairly attributed to the state itself." 71
This inquiry is "fact-specific." 72 "[A] state employee who pursues purely private motives
and whose interaction with the victim is unconnected with his execution of official duties does not
act under color of law," but "off-duty police officers who ... purport to exercise official authority
generally act under color oflaw." 73 This purported authority may be manifested in many ways: a)
"flashing a badge"; 74 b) "identifying oneself as a police officer"; 75 c) "wearing a police
uniform";
76
d) "intervening in a dispute involving others pursuant to a duty imposed by police
department regulations"; 77 e) ordering the plaintiff "repeatedly to stop"; 78 f) seeking to arrest the
6
plaintiff; 79 and f) using a state-issued weapon; 80 g) "placing [the plaintiff] under arrest." 81 For
example, our Court of Appeals held an off-duty security guard acted under color of state law
because she wore a police uniform, ordered the plaintiff repeatedly to stop, and sought to arrest
him. 82
A private citizen is vested with state authority to make an arrest in certain circumstances.
Under the common law, a "peace officer" could "arrest without a warrant for a misdemeanor or
felony committed in his presence." 83 Consistent with the common law, the Pennsylvania Supreme
Court recognized a "private citizen" has a "common law power to arrest for breaches of the peace
committed in one's presence." 84 The Pennsylvania General Assembly likewise permits private
citizens to use force to make "lawful" arrests. 85
We must submit the determination of whether Officer Neidig acted under color of law to
the jury to decide if he acted under color of law.
In Fate v. Harper, Judge Schwab held a
reasonable jury could conclude the defendant off-duty police officer acted under color of law
where the officer-who had just been in a car accident with the plaintiff-blocked the plaintiff
from driving away, ordered him to exit he car, demanded his license, registration and insurance
information, brandished his city-issued fire-arm, and called on-duty officers. 86
A reasonable jury could find Officer Neidig committed the alleged misconduct under the
color of law.
While chasing after McGuire, Officer Neidig ordered him to stop multiple times.
Officer Neidig effected a de facto arrest on McGuire by tackling him to the ground and subduing
him.
officer.
While attacking McGuire, Officer Neidig made statements suggesting he is a police
According to McGuire, Officer Neidig stated, "You think you can out run a 39-year-old
who works in Wilkinsburg?" 87
Officer Neidig admits at some point during or after the struggle
7
he "deal[s] with worse fuckers than you in Homewood. " 88
While these statements alone do not
define Officer Neidig as a police officer, the totality of the circumstances permit the reasonable
inference Officer Neidig committed the alleged misconduct while "clothed with the authority of
state law. " 89
B. We grant the City's motion for summary judgment on McGuire's supervisory
liability claim under § 1983.
Having found a reasonable jury may conclude Officer Neidig acted under color of law
and may have liability under § 1983 as an alternative to assault and battery under state law, we
analyze whether the City must proceed to trial under a theory of supervisory liability.
The City
argues McGuire failed to prove it did not properly train, discipline, or supervise Officer Neidig.
McGuire counters there are sufficient facts for a jury to reasonably conclude the City acted
deliberately indifferent toward him for failing to: 1) implement an off-duty conduct policy; 2)
conduct a complete investigation of his citizen's complaint against Officer Neidig; and 3) train
its officers on off-duty conduct. 90
We understand McGuire's arguments as three distinct
potential theories of supervisory liability: 1) the City's failure to adopt an off-duty policy; 2) the
City's custom or practice of not completing investigations of citizens' complaints regarding
police off-duty misconduct committed under color of law; and 3) the City's failure to train its
officers on off-duty use of force.
McGuire fails to demonstrate a claim for supervisory liability
under § 1983.
In Monell, the United States Supreme Court held a city may be liable under § 1983 when it
causes the constitutional violation at issue. 91 To succeed on a Monell claim, McGuire must
establish: "(1) [he] possessed a constitutional right of which [he] was deprived; (2) the
municipality had a policy [or custom]; (3) the policy [or custom] 'amounted to deliberate
8
indifference' to [his] constitutional right; and (4) the policy [or custom] was the 'moving force
behind the constitutional violation. ,,,n
Acts of a government employee "may be deemed to be the result of a policy or custom of
the governmental entity for whom the employee works" where: 1) "the appropriate officer or entity
promulgates a generally applicable statement of policy and the subsequent act complained of is
simply an implementation of that policy"; 2) "no rule has been announced as policy but federal law
has been violated by an act of the policymaker itself'; and 3) "the policymaker has failed to act
affirmatively at all, [though] the need to take some action to control the agents of the government
'is so obvious, and the inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have been deliberately
indifferent to the need.' " 93
For example, as to the third theory, our Court of Appeals in Natale held "the failure to
establish a policy to address the immediate medication needs of inmates with serious medical
conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those
inmates' medical needs."
94
In Natale, the defendant correctional facility maintained a policy of
screening incoming inmate' medical needs, but the screening had many failings. 95 The medical
assistant recorded the inmates' medical needs, but did not pass on the information. 96 Staff could
not provide medication to an inmate without first obtaining an order from a doctor. 97 The policy
did not require a doctor to see an inmate within the first 72 hours, and the policy did not charge
anyone with the responsibility of determining whether an inmate should be seen by a doctor earlier
in the first 72-hour period. 98 As a result, the policy did not ensure an inmate with a need for
medication for a serious medical condition would receive medication during the first 72 hours of
9
his incarceration. 99 The court concluded the facility's failure to establish a policy demonstrated the
facility "disregarded a known or obvious" risk the inmates' medical conditions may require
medication within the first 72-hours of their incarceration. 100
McGuire does not identify which theory he relies on for his supervisory liability claim.
McGuire does not identify evidence of a generally applicable statement of policy. Nor does
McGuire identify evidence a policymaker violated federal law. McGuire does argue, however,
there is evidence the City failed to act affirmatively by not creating an off-duty policy and by not
conducting complete investigations into potential misconduct by off-duty police officers. We
address these theories below.
The City's alleged failure to maintain an off-duty policy regarding the use offorce.
McGuire's first theory of supervisory liability fails. For the City's failure to maintain an
off-duty policy to be actionable, McGuire must demonstrate the need to maintain a policy
regarding police off-duty conduct "is so obvious, and the inadequacy of existing practice so likely
to result in" excessive force, "that the policymaker can reasonably be said to have been
deliberately indifferent to the need." 101 McGuire fails to show the need for such a policy is
obvious.
The City admits it does not have any policy or general orders in effect regarding off-duty
conduct. 102 The City does, however, have a policy regarding the use of force. 103 Officer Neidig
underwent training on the use of force. 104 Officer Neidig testified his training applied to his
conduct with McGuire. 105 This training decreases the probability the City's failure to maintain an
off-duty policy would "likely" result in off-duty officers committing excessive force.
A
reasonable jury could not conclude the need for an off-duty policy is obvious given Officer
10
Neidig's training on the use of force.
To show the need for such a policy, McGuire proffered an expert report by R. Paul
McCauley, Ph.D., FACFE, an Emeritus Professor of Criminology at the Indiana University of
Pennsylvania. 106 Dr. McCauley bases his opinions on "best practices" of law enforcement
management, organization, administration, and operation.
107
Dr. McCauley describes the
International Association of Chiefs of Police's policy regarding police off-duty conduct. 108 This
cited model policy prohibits off-duty officers from enforcing minor violations such as harassment
and disorderly conduct. 109 Nor may off-duty officers make an arrest if the officer is "personally
involved in the incident underlying the arrest." 110 The model policy requires the officer report
suspected or observed criminal activities to on-duty authorities. 111 Dr. McCauley opines this
model policy is "readily available" to the City. 112 He concluded the City's failure "to guide and
direct police off-duty conduct was a substantial factor causing the harm suffered by Shane
McGuire." 113 Dr. McCauley's opinion makes intuitive sense, as the model policy would have
prohibited Officer Neidig from pursuing and arresting McGuire, and instead would have required
him to contact on-duty authorities.
There is also evidence the City understood the need for a policy governing off-duty
conduct. The table of contents to the Pittsburgh Bureau of Police's policies contains a section
entitled "Off Duty Conduct: Powers of Arrests." 114 Even so, the City does not maintain a policy
regarding off-duty conduct.
McGuire fails to demonstrate the need for a policy regarding off-duty conduct is obvious or
the City's existing practice of maintaining no off-duty conduct policy is likely to result in off-duty
officers committing excessive force. The City's failure to adopt a policy regarding off-duty
11
conduct created a risk off-duty officers would intervene in criminal matters.
Although an
off-duty officer without such a policy might intervene in situations where "best practices" dictate
he should not, the mere fact an off-duty officer intervenes does not necessarily mean he will likely
commit excessive force.
The City's alleged failure to complete investigating a McGuire's complaint
against Officer Neidig.
McGuire argues the City's failure to complete the investigation into his complaint against
Officer Neidig is evidence of deliberate indifference. We understand this argument as a theory of
supervisory liability based on the City's custom of failing to investigate its officers' off-duty
misconduct committed under color of law.
McGuire fails to demonstrate the City had a custom of failing to investigate off-duty
conduct. A custom is a course of conduct not authorized by law, but "virtually constitutes law"
because practices of state officials are "permanent and well-settled. 115 McGuire only cites his
complaint regarding off-duty conduct the City did not fully investigate: the complaint against
Officer Neidig. The other citizens' complaints against Officer Neidig do not concern off-duty
conduct, and the Office of Municipal Investigation completed all of these reports. 116 McGuire
fails to demonstrate the City had a custom-i.e. "permanent and well-settled" course of
conduct 117-of failing to complete investigations into off-duty conduct.
McGuire argues the City's failure to have a written policy regarding off-duty conduct
means the City "cannot catalogue and readily retrieve" complaints of off-duty conduct by order or
policy number.
118
The City's system of cataloguing citizens' complaints, however, has no bearing
on the existence of a custom.
12
The
City~
alleged failure to train on off-duty use offorce.
McGuire also fails to adduce genuine issues of material fact on whether the City failed to
train its officers on off-duty use of force.
claim under § 1983 is difficult.
"Establishing municipal liability on a failure to train
A plaintiff pressing a § 1983 claim must identify a failure to
provide specific training that has a causal nexus with their injuries." 119 McGuire also "must
demonstrate that the absence of that specific training can reasonably be said to reflect a
deliberate indifference to whether the alleged constitutional deprivations occurred."
120
McGuire must identify "the specific training the [City] should have offered." 121 "Mere proof that
an injury could have been avoided if the municipal officer or employee 'had better or more
training is not enough to show municipal liability' under a 'failure to train' Monell claim." 122
Ordinarily, "[a] pattern of similar constitutional violations by untrained employees" is
necessary "to demonstrate deliberate indifference for purposes of failure to train." 123 "Without
notice that a course of training is deficient in a particular respect, decisionmakers can hardly be
said to have deliberately chosen a training program that will cause violations of constitutional
rights." 124
"A pattern of violations puts municipal decisionmakers on notice that a new program
is necessary, and '[t]heir continued adherence to an approach that they know or should know has
failed to prevent tortious conduct by employees may establish the conscious disregard for the
consequences of their action-the 'deliberate indifference'-necessary to trigger municipal
liability. "' 125
Absent a pattern of violations, a failure to train claim may proceed where (1) a
constitutional violation is "a highly predictable consequence of a failure to equip law
enforcement officers with specific tools or skills to handle recurrent situations," and (2) the
13
likelihood of recurring violations justifies "a finding that the policymakers' decision not to train
an officer reflected deliberate indifference" to the violation of a constitutional right. 126
McGuire fails to demonstrate a pattern of excessive force violations by untrained off-duty
police officers.
He does not cite instances of excessive force violations by other untrained
off-duty police officers.
McGuire also fails to demonstrate his injury is a "highly predictable consequence" of the
City's failure to equip its police officers with specific tools or skills to handle "recurrent
situations." 127
In support of his failure to train argument, McGuire proffered the expert opinion
of Dr. McCauley, stating City officers "are not reasonably trained on off-duty conduct." 128
Dr.
McCauley's opinion does not address the applicable standard: whether Officer Neidig's use of
force is a highly predictable consequence of the City's failure to train on off-duty use of force.
Officer Neidig underwent training on excessive force, and such training negates the argument the
City failed to equip its police officers with skills needed to handle the use of force while off duty.
McGuire fails to demonstrate how Officer Neidig's use of excessive force is a highly predictable
consequence of the City's failure to train its officers on off-duty use of force.
C. Conclusion
In the accompanying Order, we deny Officer Neidig's motion for summary judgment as
there are genuine issues of material fact from which a jury could find he used excessive force
under color of law.
We grant the City's motion for summary judgment as McGuire fails to
demonstrate § 1983 supervisory liability arising from an unconstitutional custom or the City's
failure to train its officers.
14
1
"[W]e view the record in the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor." In re Net Pay Sols., Inc., 822 F.3d 144, 158 (3d
Cir. 2016).
2
ECF Doc. No. 53-4, at pp. 7-9.
3
Id.atp.9.
4
Id.
s Id.
6
Id. at p. 6.
7
Id.
s Id.
9
Id.
10
ECF Doc. No. 53-4, at p. 9.
II
Id.
12
Id.
13
ECF Doc. No. 53-3 at pp. 6-7.
14
d
.l. atp. 7.
1s
Id.
16
Id. at pp. 7, 30; ECF Doc. No. 53-4, at p. 11.
17
ECF Doc. No. 53-3, at p. 23.
18
.ld. at p. 9.
19
.ld. at p. 10.
20
ECF Doc. No. 53-4, at p. 11.
21
Id.
15
22
Id.
23
Id.
24
Id.
25
Id. at p. 12.
26
Id.
21
Id.
28
Id.
29
Id.
30
Id.
31
Id.
32
Id.
33
Id. at p. 13.
34
Id. at pp. 13, 15.
35
Id. at pp. 13-14.
36
Id. at p. 14.
37
Id.
38
Id.
39
ECF Doc. No. 53-3, at p. 23.
40
ECF Doc. No. 53-4, at p. 15.
4t
Id.
42
Id.
16
43
Id. atp. 16.
44
Id.
45
Id.
46
Id.
47
Id. at pp. 16-17.
48
Id. at p. 17.
49
Id.
50
Id. atp. 16.
51
Id. at pp. 17, 19.
52
ECF Doc. 53-3, at p. 20.
53
ECF Doc. No. 53-4, at p. 18.
54
Id.
55
ECF Doc. No. 53-6, at p. 1.
56
ECF Doc. No. 54-10, at pp. 25-26; ECF Doc. No. 54-8, at p. 4.
57
ECF Doc. No. 54-8, at p. 4-5 (stating McGuire did not cooperate after the investigator sought
to interview him); ECF Doc. No. 54-5, at p. 2 (indicating McGuire submitted a written
statement).
58
ECF Doc. No. 54-5, at pp. 7-8.
59
Id. at p. 7.
60
ECF Doc. No. 1.
61
ECF Doc. No. 37, at p. 12.
62
Summary judgment is proper when there is no genuine dispute of material fact and the
movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute as to a
material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for
17
the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion
for summary judgment, the court must consider the "underlying facts and all reasonable
inferences therefrom in the light most favorable to the party opposing the motion." Slagle v.
Cnty. of Clarion, 435 F.3d 262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its
initial burden of showing the basis of its motion, the burden shifts to the non-moving party to go
beyond the pleadings and point to "specific facts showing that a genuine issue exists for trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In other words, the non-moving party
"must present more than just bare assertions, conclusory allegations or suspicions to show the
existence of a genuine issue." Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(citation and internal quotation marks omitted). Summary judgment must be granted against a
non-moving party who fails to sufficiently "establish the existence of an essential element of its
case on which it bears the burden of proof at trial." Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 265 (3d Cir. 2014).
63
Sprauve v. W Indian Co., 799 F.3d 226, 229 (3d Cir. 2015) (quoting Groman v. Twp. of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)).
64
Id. (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
65
Id. (quoting Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)).
66
Groman, 47 F.3d at 638 (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
67
Markv. Borough of Hatboro, 51F.3d1137, 1150 (3dCir. 1995).
68
Id. at 1151 (quoting Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion))
(quotation marks omitted).
69
Id. at 1150 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)) (brackets omitted).
70
Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997).
71
Groman, 47 F.3d at 638.
72
Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).
73
Bonenberger, 132 F.3d at 24.
74
Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).
15
Id.
76
Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).
18
77
Barna, 42 F.3d at 816.
78
Abraham, 183 F.3d at 287.
79
Id.
80
Barna, 42 F.3d at 818.
81
Id. at 816.
82
Abraham, 183 F.3d at 287.
83
United States v. Watson, 423 U.S. 411, 418 (1976).
84
Kopko v. Miller, 892 A.2d 766, 775 (Pa. 2006); see also id. (quoting Com. v. Corley, 462
A.2d 1374, 1379 (Pa. Super. 1983) ("[W]e hold that a citizen's arrest can be made for a breach of
the peace that is personally observed by the arrestor.").
85
See 18 Pa. C.S.A. § 508(b)(l) ("A private person who makes, or assists another private person
in making a lawful arrest is justified in the use of any force which he would be justified in using
if he were summoned or directed by a peace officer to make such arrest, except that he is
justified in the use of deadly force only when he believes that such force is necessary to prevent
death or serious bodily injury to himself or another.").
86
Fate v. Harper, No. 12-459, 2013 WL 440967, at *1, 3 (W.D. Pa. Feb. 5, 2013).
87
ECF Doc. No. 53-4, at p. 14.
88
ECF Doc. No. 53-3, at p. 23.
89
Mark, 51 F.3d at 1150 (quoting Classic, 313 U.S. at 326) (brackets omitted).
90
ECF Doc. No. 54, at p. 17.
91
Monell v. Dep 't of Soc. Servs. of City of N. Y, 436 U.S. 658, 694 (1978); see also City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
92
Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton, 489
U.S. at 389-91) (brackets omitted).
93
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Bd. ofCty.
Comm'rs of Bryan Cty., Oki. v. Brown, 520 U.S. 397, 417-18 (1997)).
19
94
Id at 585.
95
Id at 584.
96
Id
97
Id
98
Id. at 584-85.
99
Id. at 585.
loo Id.
101
Id. at 584 (quoting Bryan Cty., 520 U.S. at 417-18).
102
ECF Doc. 54-3, at pp. 1-3.
103
ECF Doc. No. 54-2, at p. 1.
104
ECF Doc. No. 53-3, at p. 17.
105
Id.
106
ECF Doc. No. 53-7.
107
Iid. at p. 3 .
108
Iid. at p. 9 .
109
Id.
110
Id. at p. 9-10.
111
Id. at p. 9.
112
Iid. at p. 10 .
113
Id.
114
ECF Doc. No. 54-2, at p. 5.
20
115
Mulholland v. Gov't Cty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir. 2013) (quoting Beck v.
City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)).
116
ECF Doc. No. 54-6; ECF Doc. No. 54-7.
117
Mulholland, 706 F.3d at 237 (quoting Beck, 89 F.3d at 971).
118
ECF Doc. No. 54, at p. 16.
119
Reitz v. Cty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (citing Colburn v. Upper Darby
Township, 946 F.2d 1017, 1030 (3d Cir. 1991)).
120
Id. (citing Colburn, 946 F.2d at 1030).
121
Id.
122
White v. Brommer, 747 F. Supp. 2d 447, 463 n.42 (E.D. Pa. 2010) (quoting Kline ex rel.
Arndt v. Mansfield, 255 F. App'x 624, 629 (3d Cir. 2007)); see also City of Canton, 489 U.S. at
391 ("Neither will it suffice to prove that an injury or accident could have been avoided if an
officer had had better or more training, sufficient to equip him to avoid the particular
injury-causing conduct.").
123
Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014) (quoting Connick v.
Thompson, 563 U.S. 51, 62 (2011)).
124
Id. (quoting Connick, 563 U.S. at 62).
125
Thomas, 749 F.3d at 223 (quoting Bryan Cnty., 520 U.S. at 407).
126
White, 747 F. Supp. 2d at 463 (quoting Kline, 255 F. App'x at 629) (brackets and quotation
marks omitted).
127
Id. (quoting Kline, 255 F. App'x at 629).
128
ECF Doc. No. 53- 7, at p. 18.
21
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