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January 22, 1991


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 deputies.

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 scuffle ensued.

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 processed.

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.

I. Defendant McAllister

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 not given.

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 was required.

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 ...

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