The opinion of the court was delivered by: ANITA B. BRODY
Anita B. Brody, District Judge
Before me are two motions for summary judgment on plaintiff's pro se action under 42 U.S.C. § 1983 for violation of his civil rights. They were filed by (1) St. Josephs Hospital and Nurse Ann Newcomer ("Hospital defendants"); and, (2) Steven Skiles, James Neimer, Andrew Morgan, Jeff Kraus, Ken Switzer, and Ralph Anderson ("Lancaster County defendants").
In these motions I am called upon to decide: (A) if the issue of excessive force was decided at a state court suppression hearing prior to plaintiff's trial for driving under the influence such as to preclude plaintiff from re-litigating the issue of whether when arresting plaintiff the defendant police officers used excessive force in violation of the Fourth Amendment; and (B) if that same factual determination precludes re-litigating the issue of whether the hospital defendants withdrew plaintiff's blood without his consent in violation of the Fourth Amendment. I conclude that if the state court determinations were final, issue preclusion would prevent plaintiff from litigating the excessive force and blood withdrawal issues.
I. STATEMENT OF MATERIAL FACTS
On February 26, 1991, at approximately 5:22 a.m. in the city of Lancaster, police officers James Neimer and Steven Skiles saw plaintiff Ashford with a passenger, David Gray, driving a car. According to the officers, the car was swerving down a narrow street at an excessive rate of speed and was "nearly striking vehicles that were parked on both sides of the street" (Commonwealth v. Ashford, No. 2459-1991, Transcript of Proceedings, Suppression Hearing, 1/14/92 at 44, 62-63) ("Tr."). Because the car was being driven in an erratic manner, the police officers stopped it to investigate (Tr. at 28, 99). Mr. Ashford admits to having consumed two and one half cans of beer within three to four hours that evening, and Mr. Gray to having consumed both beer and used cocaine (Tr. at 28, 99).
Under plaintiff Ashford's version of the facts, Officer Skiles stopped the car and asked Mr. Ashford for his driver's license (Tr. at 19). When Mr. Ashford told the officer that he did not have his license, the officer ordered Mr. Ashford to get out of the car, walk to the front, and put his hands on the hood (Tr. at 19). Mr. Gray got out of the car at about the same time as Mr. Ashford and Officer Neimer detained him (Tr. at 19). At this point, two police cars arrived with Officers Ken Switzer, Ralph Anderson, Andrew Morgan, and Jeff Kraus (Tr. at 51-52, 66). Mr. Ashford claims that he was standing completely motionless, facing his vehicle, with his back turned towards the officers, when he heard one of the officers say the words "car thief" (Tr. at 21). Upon hearing those words Mr. Ashford claims that he was struck on the head and fell, and that he attempted to get up, but was struck once again and rendered unconscious (Tr. at 21).
Mr. Ashford further contends that he did not resist arrest, act in a threatening manner, or make any statements to the police officers at the time this incident took place (Tr. at 22).
The next thing that Mr. Ashford remembers is waking up in the police station at approximately 6:00 p.m. that same day and being taken to the hospital with bruises all over his body and a leg injury (Tr. at 22). At the hospital, Mr. Ashford was told that he had torn ligaments in his left leg that required a leg brace (Tr. at 22). Mr. Ashford does not remember how he sustained these injuries (Tr. at 22).
According to Officers Skiles and Neimer, Mr. Ashford was unconscious at the time his car was stopped and remained unconscious throughout the time that the defendant officers had contact with him (Tr. at 50, 66). Officer Skiles testified that when he stopped Mr. Ashford's car, he found the car's driver side door open, with the left half of Mr. Ashford's body hanging outside the door, and the car in neutral and moving forward (Tr. at 48). When he approached the car, Officer Skiles realized that Mr. Ashford was unconscious (Tr. at 48). Based upon Mr. Ashford's erratic driving, the strong odor of alcohol emanating from Mr. Ashford, and the relatively short period of time in which Mr. Ashford had become unconscious, Officer Skiles placed Mr. Ashford under arrest for driving under the influence of alcohol (Tr. at 50).
According to Officer Neimer, Mr. Ashford was placed in a police car approximately one hour after his arrest, and transported by Officer Neimer and a Community Services Aide from the police station to St. Josephs Hospital for a blood alcohol test (Tr. at 72). Upon arrival at the hospital, Mr. Ashford was placed in a wheelchair and wheeled to the room where his blood was eventually drawn by Nurse Newcomer (Tr. at 75). At no time did a physician or nurse make a medical determination as to why Mr. Ashford was unconscious (Tr. at 83). Officer Neimer testified that Mr. Ashford was still unconscious at the time that he was returned to the police station (Tr. at 76). Mr. Ashford was charged with driving under the influence of alcohol (Tr. at 51).
On July 29, 1991, Mr. Ashford instituted this action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Pennsylvania against Officers Steven Skiles, James Neimer, Andrew Morgan, Jeff Kraus, Ken Switzer, and Ralph Anderson of the Lancaster County Police Department, Nurse Ann Newcomer, an employee of St. Josephs Hospital, and St. Josephs Hospital. On September 3, 1991, the action was transferred to the Eastern District of Pennsylvania.
Mr. Ashford asserts three distinct claims: (1) that all of the defendant officers used excessive force by assaulting him in violation of the Fourth Amendment; (2) that Nurse Newcomer and St. Josephs Hospitals withdrew his blood without his consent in violation of the Fourth Amendment; and, (3) that Officer Neimer and Nurse Newcomer conspired to conceal the defendant officers' use of excessive force.
All of the defendants have moved for summary judgment. Both sets of defendants seek to rely on the doctrine of issue preclusion, arguing that the factual basis of plaintiff's claims has already been litigated. The defendant officers assert that the issue of excessive force was litigated and decided at a suppression hearing prior to plaintiff's trial for driving while intoxicated. Nurse Newcomer and St. Josephs Hospital argue that the issue of consent was also decided against plaintiff in that hearing, barring further litigation. In addition, the Hospital defendants argue that they are immune from civil liability pursuant to 75 Pa. Cons. Stat. Ann. § 1547(j) (Supp. 1992). While neither Officer Neimer nor Nurse Newcomer have addressed the plaintiff's allegation of conspiracy to cover-up the use of excessive force, that claim is precluded by this court's favorable ruling on the two prior issues.
To succeed on a motion for summary judgment, the moving party must establish that no genuine issues of material fact remain in dispute and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). An issue is "genuine" only if there is sufficient evidence for a reasonable jury to find for the non-moving party; a factual dispute is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In deciding whether the standards for summary judgment have been met, the evidence must be viewed in the light most favorable to the non-moving party. Mellon Bank Corp. v. First Union Real Estate Equity and Mortg. Invest., 951 F.2d 1399, 1404 (3d Cir. 1991). Where there is a complete failure of proof concerning an essential element of the non-moving party's case, all other facts are rendered immaterial, and the moving party is entitled to a judgment as a matter of law. Celotex Corp., 477 U.S. at 323.
A. Plaintiff's § 1983 claim against the Lancaster County defendants.
To maintain his § 1983 claim against the Lancaster County defendants, plaintiff must demonstrate that the conduct complained of was committed by a person acting under color of state law and that the conduct deprived the plaintiff of the rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, ...