The opinion of the court was delivered by: Rambo, District Judge.
Defendants Ralph McAllister and Dauphin County, William
Livingston, Richard Shroy and Charles Fisher (the county and
Livingston, Shroy and Fisher will collectively be referred to as
the "Dauphin defendants") have filed motions for partial summary
judgment. The motions have been fully briefed. The court will
address the two motions together.
Many of the facts which provide the basis for this case are in
dispute. In detailing the factual background the court will
recite undisputed facts, and when necessary, identify and state
portions of the chronology which are in dispute. On the morning
of November 3, 1987, election day, Dauphin County deputy sheriffs
Richard Shroy and
Charles Fisher arrived at the Fisherville Fire Hall, a Dauphin
County polling place. According to Shroy and Fisher, they went to
the fire hall pursuant to a verbal order of Dauphin County Court
of Common Pleas Judge Jack Dowling to investigate a possible
disturbance at the polls. Plaintiffs deny the existence of a
court order, and contend that the deputies were acting only on
the orders of the Sheriff's department. Upon arrival, Shroy and
Fisher found the fire hall calm. They asked a third deputy, James
Hallman, who had been present at the fire hall the bulk of the
morning, if there had been any disturbances. Hallman replied that
there had been a number of sharp comments traded between
plaintiff Evelyn Shoop ("Mrs. Shoop"), a poll watcher, and
several of the other elections officials. Much of the hubbub
centered on Evelyn Shoop's belief that the Judge of Elections,
Judy Vallier, had been permitting her parents to vote in local
elections when they did not reside in the district. Shroy and
Fisher then spoke to Vallier, who told them that Evelyn Shoop had
been making unsavory comments toward some of the people at the
fire hall, and that because of Mrs. Shoop's conduct the election
board was threatening to walk out.
Deputy Fisher then left the polling area and called the
sheriff's office to relate what he had heard and to obtain
further orders. The Dauphin defendants assert that Fisher spoke
with Chief Deputy Sheriff Carmen Henderson, who relayed Fisher's
information to Judge Dowling. Judge Dowling then, according to
the Dauphin defendants, ordered Henderson to have Mrs. Shoop
removed from the polling place. Plaintiffs vigorously dispute
this assertion, and counter that Judge Dowling never gave any
order, but that Henderson did issue an "illegal" order to the
Fisher went back to the fire hall and advised Mrs. Shoop that
the court had ordered her to leave the premises. Mrs. Shoop
refused to move until she was shown a written order. Fisher then
left the hall again and, he states, called the sheriff's office
to reconfirm his orders. Thereupon he returned to the hall and,
along with Shroy, attempted to physically remove Mrs. Shoop. A
After this altercation, the defendant deputies retreated, and
defendant Ralph McAllister, a state trooper, arrived. McAllister
spoke with the deputies, who related their versions of what
happened. McAllister noted that Fisher had bite marks on his hand
while Shroy had a cut lip. The trooper attempted to ask Mrs.
Shoop to leave, and when she refused, McAllister placed her under
arrest, charging her with assault and resisting arrest. Another
struggle ensued between Suzette Shoop and Brenda Webster and the
deputies, and they too were arrested. McAllister then drove
plaintiffs to Troop H headquarters, where their arrests were
Plaintiffs Evelyn Shoop and Brenda Webster complained of pain
resulting from the struggles which took place at the fire hall.
They were eventually taken to a hospital and examined.
The three plaintiffs filed this suit pursuant to
42 U.S.C. § 1983, claiming that their constitutional rights were violated
because they were arrested without probable cause and the
officers involved used unnecessary force to arrest them. Webster
and Mrs. Shoop further claim that they were unconstitutionally
denied medical care while in the custody of the state police. All
three plaintiffs filed pendent state law claims.
After the close of discovery, defendants have filed their
motions for partial summary judgment.
The standards for the award of summary judgment under Federal
Rule of Civil Procedure 56 are well known. As the Third Circuit
Court of Appeals recently capsulized:
Summary judgment may be entered if "the pleadings,
deposition[s], answers to interrogatories, and
admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to a judgment as a matter of law." Fed.R.Civ.P.
56(c). An issue is "genuine" only if the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); Equimark Comm. Finance Co. v.
C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d
Cir. 1987). If evidence is "merely colorable" or "not
significantly probative" summary judgment may be
granted. Anderson, 106 S.Ct. at 2511; Equimark,
812 F.2d at 144. Where the record, taken as a whole,
could not "lead a rational trier of fact to find for
the nonmoving party, summary judgment is proper."
Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). Once
the moving party has shown that there is an absence of evidence
to support the claims of the non-moving party, the nonmoving party
may not simply sit back and rest on the allegations in his
complaint, but instead must "go beyond the pleadings and by her
own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'" Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986). The court will consider the parties' motions
under these standards.
A. Failure to Provide Adequate Medical Care
McAllister asserts that plaintiffs have shown no facts from
which, as a matter of law, one could conclude that McAllister
violated Webster's and Evelyn Shoop's rights to adequate medical
care under the due process clause of the fourteenth amendment.
Plaintiffs respond essentially by stating that adequate care was
To state a claim under § 1983 for the failure to provide
adequate medical care to one in pretrial detention, the behavior
of the officer must rise to the level of deliberate indifference
to a serious medical need. Dayton v. Sapp, 668 F. Supp. 385, 388
(D.Del. 1987) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976)); Boring v. Kozakiewicz,
833 F.2d 468, 471-473 (3d Cir. 1987) (discussing, without resolving, the
difference in the "deliberate indifference" standard as applied
to pretrial detainees and convicted prisoners), cert. denied,
485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). Here, even
adopting plaintiffs' own characterizations, the court cannot say
that Webster's and Shoop's medical needs were serious, or that
Trooper McAllister was "indifferent" to them.
First, unless a medical condition is obviously "serious" to the
layman, a plaintiff must submit expert testimony as to the
seriousness of the problem. Boring, 833 F.2d at 473-74.
Plaintiff Webster stated that her "back is what she went to the
hospital for because that is what hurted [sic] at the time."
Deposition of Brenda Webster at 25. Webster sustained no broken
bones, id. at 28, and her deposition discloses no type of
injury that would be obvious to a layman. Further, she was
treated and released from the emergency room of Community General
Osteopathic Hospital, a fact which tends to show that her
injuries were not "serious." Id. at 28-29. Webster has offered
no expert testimony or opinions which would prove that, after her
arrest, her injuries were, if not obvious to a layman,
nevertheless serious to a degree that immediate medical attention
Similarly, Evelyn Shoop's injuries are not of such an obviously
serious nature as to have required more speedy medical attention
than that which was administered. Mrs. Shoop admits that black
and blue bruises did not appear until several days after her
arrest. Deposition of Evelyn Shoop at 30-31. Her shoulder and
wrists hurt and she was evidently diagnosed as having a mild
concussion. However, these are not the types of injuries obvious
to a layman as requiring immediate medical attention absent some
other outward indicia, such as nausea or disorientation.
Plaintiffs do not point out any such manifestations, and the
court's own search of the record ...