Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
DEBELLIS v. KULP
September 10, 2001
NICHOLAS W. DEBELLIS, III, ET AL., PLAINTIFFS,
PATROL OFFICER CHARLES KULP, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Franklin S. Van Antwerpen, United States District Judge
Plaintiffs Nicholas W. DeBellis, III and Patricia DeBellis, the parents
and natural guardians of Karisa DeBellis ("DeBellis"), have brought the
instant action on her behalf pursuant to 42 U.S.C. § 1983. Plaintiffs
allege that the Defendants Patrol Officer Charles Kulp ("Kulp"), Patrol
Officer Keith Morris ("Morris"), Youth Officer Carol Bennis ("Bennis"),
Youth Officer David Moyer ("Moyer"), Captain Carl W. Held, the City of
Allentown Department of Police, Mayor William L. Heydt and the City of
Allentown violated DeBellis' rights under the Fourth Amendment of the
United States Constitution.*fn1 They have also brought state law claims
for assault and battery, false imprisonment, false arrest, intentional
infliction of emotional distress and negligent infliction of emotional
distress against all of the defendants.
Presently before this Court is Defendants' Motion for Summary Judgment
on all claims, filed by the Defendants on July 30, 2001. We have
jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343 and
The court shall render summary judgment "if the pleadings,
depositions, 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 there
is a sufficient evidentiary basis on which a reasonable jury could find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is
"material" only if it might affect the outcome of the suit under
governing law. Id. at 248, 106 S.Ct. 2505. All inferences must be drawn,
and all doubts resolved, in favor of the non-moving party. United States
v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962);
Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied,
474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).
On motion for summary judgment, the moving party bears the initial
burden of identifying those portions of the record that it believes
demonstrate the absence of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat
summary judgment, the non-moving party must respond with facts of record
that contradict the facts identified by the movant and may not rest on
mere denials. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P.
56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins.
Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must
demonstrate the existence of evidence that would support a jury finding
in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2505.
The following is a review of the factual background of this case.
Events Preceding Police Encounter with Karisa DeBellis
In the early spring or summer of 1998, Allentown Youth Officer Carol
Bennis ("Bennis") learned that a juvenile known as K.L. was a chronic
runaway, and in early July of 1998, learned that K.L. had again run away
from home. (C. Bennis Aff. at ¶¶ 3,5) At around 3:00 p.m. on July 6,
1998, Bennis received a report from one J.B. (whom Bennis knew to be the
fiancé of K.L.'s father) that K.L. had been spotted by a relative
walking in the 800 block of Gordon Street in Allentown, Pennsylvania.
(Id. at ¶ 6.) Based on information provided to her prior to July 6,
1998, Bennis believed K.L. to be between 5' 4" and 5' 7" in height and to
weigh a maximum of 145 pounds; Bennis also knew that K.L. had been
involved in drug use, and may have lost weight. (Id. at ¶ 4.) Bennis
had never met K.L.; nor had she seen a photograph of her. (Id.) Bennis
believed that K.L. posed a flight risk, that K.L. had on at least one
prior occasion provided a false name to police and that K.L. had mental
health issues. (Id. at ¶ 6.)
Upon receiving the report that K.L. had been spotted, Bennis asked
fellow youth officer David Moyer ("Moyer") to accompany her, and they
proceeded to the general vicinity. (C. Bennis Aff. at ¶ 7; D. Moyer
Aff. at ¶¶ 5-6.) Bennis and Moyer observed a young female entering a
cemetery approximately three blocks from the area where K.L. was
reportedly seen. (C. Bennis Aff. at ¶ 8; D. Moyer Aff. at ¶ 6.)
According to Bennis, she had no doubt that the woman was K.L. (C. Bennis
Aff. at ¶ 10). Although Moyer had no prior involvement with K.L. and
had never met her or seen a photograph of her, given Bennis' positive
identification of DeBellis as K.L., he exited the vehicle, in an effort
to take her into custody. (C. Bennis Aff. at ¶ 11; D. Moyer Aff. at
¶ 10.) A call was placed on the police radio for assistance in
apprehending the juvenile; Bennis then drove to the south side of the
cemetery in the event that the juvenile fled in that direction. (C.
Bennis Aff. at ¶ 12).
According to DeBellis, when she was several yards into the cemetery, a
man dressed in a jacket and a tie*fn2 approached her, yelling for her to
wait. (K. DeBellis Aff. at ¶ 4; K. DeBellis Dep. at 45-47.) This man
turned out to be Officer Moyer.
Police Encounter with Karisa DeBellis
DeBellis waited for Moyer to reach her, at which time he asked DeBellis
what her name was and if she had any identification. (K. DeBellis Aff. at
¶ 5; K. DeBellis Dep. at 47, 58.) She replied "Karisa DeBellis" and
stated that she did not have any identification. (K. DeBellis Aff. at
¶ 6; K. DeBellis Dep. at 47.) DeBellis alleges that Moyer then
grabbed her arm and, at the same time, flashed something resembling a
calculator case; DeBellis did not at that time know what the object was.
(K. DeBellis Aff. at ¶ 8; K. DeBellis Dep. at 47-49.) Fearing that
he was going to try to rape her, DeBellis tried to pull away from him, at
which point Moyer held her more forcefully and attempted to drag her
towards Turner Street. (K. DeBellis Aff. at ¶¶ 9-11; K. DeBellis
Dep. at 50-51.) DeBellis repeatedly screamed for him to get away from
her. (K. DeBellis Dep. at 50, 52, 60.) In an effort to free herself,
DeBellis grabbed onto a tombstone with her left hand. (K. DeBellis Aff.
at ¶ 13; K. DeBellis Dep. at 51-54.) According to DeBellis, Moyer
pulled her body so hard that she lost her grip on the tombstone. (K.
DeBellis Aff. at ¶ 14; K. DeBellis Dep. at 54.) He then kicked her
feet out from underneath her, such that she spun in a 180 degree turn and
landed hard on her back. (K. DeBellis Aff. at ¶¶ 14-15; K. DeBellis
Dep. at 54-56.) He then straddled her, holding her hands above her head
and pinning her legs to the ground so that all DeBellis could move was
her head. (K. DeBellis Dep. at 56-57.) Still believing that she was going
to be raped, DeBellis continued to scream for help. (K. DeBellis Aff. at
¶ 17; K. DeBellis Dep. at 60.)
Once at the station, the officers shackled her to the floor in front of
Bennis' desk. (K. DeBellis Aff. at ¶ 31; K. DeBellis Dep. at 72.)
Bennis called K.L.'s father, and then called DeBellis' father (K.
DeBellis Aff. at ¶¶ 35, 43-44; K. DeBellis Dep. at 73-74), at which
point Bennis told someone in the next room that they had the wrong
person. (K. DeBellis Aff. at ¶ 46.) The police then drove DeBellis to
the Subway shop. (K. DeBellis Aff. at ¶ 49; K. DeBellis Dep. at 75.)
DeBellis alleges that she was cut and bruised (K. DeBellis Dep. at
72-73, 78, 80-81) and that upon seeing her bruises, her father suggested
that she go to the hospital for an examination. (K. DeBellis Aff. at
¶ 52.) DeBellis went to St. Luke's Emergency Room. (K. DeBellis Aff.
at ¶ 54; K. DeBellis Dep. at 86.) Since the incident, DeBellis has
had several sessions of physical therapy to treat her injuries and has
seen psychological professionals to treat the psychological trauma she
has since experienced. (K. DeBellis Aff. at ¶¶ 56-57; K. DeBellis
Dep. at 18, 21-22, 91, 103-04.)
Defendants, on the other hand, state that Moyer displayed his badge
upon approaching DeBellis — even before asking DeBellis her name.
(D. Moyer Aff. at ¶¶ 8-9.) Defendants also claim that at that point
Moyer also verbally identified himself as a police officer (Id. at ¶
8); DeBellis, on the other hand, denies that Moyer verbally identified
himself as a police officer. (K. DeBellis Dep. at 59.) Although Moyer
admits that DeBellis responded with a name that differed from the runaway
juvenile's name, Moyer nonetheless believed that he should attempt to
take DeBellis into custody, given Bennis' identification of her as the
runaway juvenile. (D. Moyer Aff. at ¶¶ 9-10.) Moyer was also aware
that the runaway juvenile was inclined to flee and had previously used
false names. (Id. at ¶ 7.) Moyer contends that when he attempted to
apprehend her, DeBellis, struggling in what appeared to be an attempt to
escape, tried to avoid Moyer's grasp and to kick Moyer. (Id. at ¶¶
11-12.) Moyer states that he was eventually able to pull DeBellis off
balance, at which point she fell to the ground. (Id. at ¶ 13.)
• Claims Under 42 U.S.C. § 1983
• 42 U.S.C. § 1983: Background
42 U.S.C. § 1983 imposes civil liability upon any person who,
acting under the color of state law, deprives another individual of any
rights, privileges, or immunities secured by the Constitution or laws of
the United States. Section 1983 does not create any new substantive
rights, but instead provides a remedy for the violation of a federal
constitutional or statutory right. Baker v. McCollan 443 U.S. 137, 144
n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 4533 (1979); Gruenke v. Seip, 225 F.3d 290,
298 (3d Cir. 2000). To state a claim under Section 1983, a plaintiff must
show that the defendant, through conduct sanctioned under the color of
state law, deprived her of a federal constitutional or statutory right.
Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 662, 88 L.E.2d 662
(1986); Gruenke, 225 F.3d at 298.
In Count VI, plaintiffs allege violations of the Fourth Amendment to
the United States Constitution as the bases for their Section 1983
claim. Plaintiffs contend that defendants violated DeBellis'
constitutional rights by arresting her without probable cause and by
using excessive force in effectuating her arrest. With respect to
plaintiffs' Section 1983 claims, defendants' brief in support of their
motion for summary judgment contends in substance that (1) the officers
are entitled to qualified immunity on the grounds that they took DeBellis
into custody upon a reasonable mistake and (2) the excessive force claim
should be dismissed because the evidence establishes that the officers
used only the force that was necessary to apprehend the suspect. Each of
these arguments is discussed in turn.
• 42 U.S.C. § 1983: Liability of Allentown Police Department
First, we dispose of some matters of pleading. In Section 1983
actions, police departments cannot be sued in conjunction with
municipalities, because the police department is merely an administrative
arm of the local municipality, and is not a separate judicial entity.
See, e.g., Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992); Rhodes
v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991), cert. denied,
502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); Open Inns, Ltd. v.
Chester County Sheriff's Dept., 24 F. Supp.2d 410, 417 (E.D.Pa. 1998);
Irvin v. Borough of Darby, 937 F. Supp. 446, 451 (E.D.Pa. 1996);
Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 377 (E.D.Pa. 1995).
Because Allentown Police Department is merely an arm of the city of
Allentown, we will grant summary judgment to the Police Department on the
Section 1983 claim.
• 42 U.S.C. § 1983: Liability of Officers Bennis, Kulp,
Morris and Moyer, Captain Held and Mayor Heydt, as Sued in their Official
The face of plaintiffs' complaint states that plaintiffs are suing
Bennis, Kulp, Morris, and Moyer, Captain Held and Mayor Heydt in both
their official and individual capacities. The Supreme Court has stated
that a suit under Section 1983 against a municipal officer in his or her
official capacity is, in actuality, a suit against the municipality that
the officer represents; an official capacity suit is essentially treated
as a suit against the entity itself. Kentucky v. Graham, 473 U.S. 159,
166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). See also Busby v. City of
Orlando, 931 F.2d 764 (11th Cir. 1991); Ruiz v. Philadelphia Hous.
Auth., No. CIV.A.96-7853, 1998 WL 159038, at *6 (E.D.Pa. March 17,
1998); Verde v. City of Philadelphia, 862 F. Supp. 1329, 1336-37
(E.D.Pa. 1994); Agresta v. City of Philadelphia, 694 F. Supp. 117, 119
(E.D.Pa. 1988); Baldi v. City of Philadelphia, 609 F. Supp. 162, 168
(E.D.Pa. 1985). Accordingly, we will grant summary judgment to Defendants
Bennis, Kulp, Morris, Moyer, Held and Heydt on the Section 1983 claim
brought against each of them in his or her official capacity.*fn3 The
remainder of the § 1983 discussion considers the claims brought
against the defendants in their individual capacities.
42 U.S.C. § 1983: Liability of Officers Bennis, Kulp, Morris
and Moyer, Captain Held and Mayor Heydt, as Sued in their Individual
It is clear that the officers were acting under the color of law when
they encountered DeBellis. Officers Bennis and Moyer were acting in their
official capacity when they set out to locate the suspected runaway, and
Officers Kulp and Morris were acting in their official capacity when they
responded to the call for assistance.*fn4 Nor is there any doubt that
DeBellis was seized. Indeed, she was brought to the ground by a police
officer, handcuffed, transported to the police station in a police
vehicle and shackled to the floor at the police station.*fn5
• Mistaken Identity Claim
However, the parties dispute whether defendants had probable cause to
arrest her. Plaintiffs allege that defendants lacked probable cause to
arrest DeBellis.*fn6 Defendants claim that they had grounds to take an
individual (K.L.) into custody, but, through a reasonable mistake, took
the wrong individual (DeBellis) into custody, and are entitled to
i. 42 U.S.C. § 1983: Qualified Immunity: Analytical Framework
Whether defendants are entitled to qualified immunity is an issue
appropriate for resolution on summary judgment. Indeed, the availability
of qualified immunity as a defense is a question of law. Siegert v.
Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The
Court has repeatedly emphasized the importance of resolving immunity
questions at the earliest possible state in litigation because "[t]he
entitlement is an immunity from suit rather than a mere defense to
liability." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116
L.Ed.2d 589 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
Qualified immunity shields state officials performing discretionary
functions from suit for damages if "their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609,
119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The United
States Supreme Court recently reiterated the importance of considering,
in a suit against an officer for an alleged violation of a constitutional
right, the requisites of a qualified immunity defense in proper
sequence. Saucier v. Katz, 531 U.S. 991, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001).*fn8 The threshold question is whether, "[t]aken in the light
most favorable to the party asserting the injury, do the facts alleged
show the officer's conducted violated a constitutional right?" Id., 121
S.Ct. at 2156. If no constitutional right would have been violated were
the allegations established, the inquiry ends; there is no need for
further inquiry concerning qualified immunity. Id. If, on the other
hand, a violation could be established, the next step is to ask whether
the right was clearly established. Id. The Court has stressed that in
order for the right to be relevant to the case under consideration, the
right the official is alleged to have violated must be clearly
established in a particularized sense; that is, "[t]he contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987)). It is only when the right allegedly violated is defined with
appropriate specificity that a court can determine if it was in fact
clearly established. Saucier, 121 S.Ct. at 2156 (citing Wilson v. Layne,
526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). The
dispositive inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Id. If a reasonable officer
would have known that his or her conduct violated the right, then the
defendant-officer is not entitled to qualified immunity for his or her
actions. See Harlow 457 U.S. at 813-20, 102 S.Ct. 2726; Bartholomew v.
Commonwealth of Pennsylvania, 221 F.3d 425, 428 (3d Cir. 2000).
ii. 42 U.S.C. § 1983: Defendants' Claim of Qualified Immunity:
We consider at the outset of our qualified immunity analysis what level
of cause law enforcement officers in defendants' position must possess in
order to take lawfully a suspected runaway into custody. Pennsylvania law
provides that "[a] child may be taken into custody: . . . [b]y a law
enforcement officer or duly authorized officer of the court if there are
reasonable grounds to believe that the child has run away from his
parents, guardian, or other custodian." 42 Pa. Cons. Stat. § 6324(4)
(West 2000) (emphasis added).*fn9 Although the parties have cast their
arguments in terms of whether the officers had probable cause to take the
juvenile into custody, the language of § 6324(4) prompts us to
consider whether probable cause is indeed required, or whether some lower
standard of cause, such as reasonable suspicion, applies.
Our inquiry has revealed no Pennsylvania or Third Circuit cases
addressing the meaning of § 6324's "reasonable grounds" language.
Numerous states have statutes with language identical to that found in
§ 6324(4), allowing law enforcement officers to take children into
custody upon "reasonable grounds" to believe that they have run away.
See e.g., Ala. Code § 12-15-56 (2001); Ariz. Rev. Stat. § 8-303
(2001); Colo. Rev. Stat. Ann. § 19-3-401 (2001); D.C. Code Ann.
§ 16-2309 (2000); Fl. Stat. Ann. § 39.401 (2001); Ga. Code §
15-11-45 (2001); Iowa Code Ann. § 232.19 (2001); Neb. Rev. Stat.
§ 43-248 (2001); N.H. Rev. Stat. § 169-D:8 (2001); N.J. Rev.
Stat. Ann. § 2A:4A-20 (2001); N.D. Cent. Code § 27-20-13 (2001);
Ohio Rev. Code Ann. § 2151.31 (2001); S.D. Codified Laws §
26-7A-12 (2001); Tenn. Code Ann. § 37-1-113 (2001); Utah Code Ann.
§ 78-3a-113 (2001); Wyo. Stat. § 14-6-405 (2001) (repealed,
effective July 1, 2003).*fn10
Our review of case law interpreting parallel language in other state
statutes suggests that in this context, "reasonable grounds" means
"probable cause." In Del Valle v. Taylor, 587 F. Supp. 524 (D.N.D. 1984),
the court considered whether a juvenile supervisor was entitled to
absolute immunity from civil liability for his determination that
reasonable grounds existed to take a child into custody pursuant to state
law providing that a supervisor shall taken into custody and detain a
child who is delinquent, unruly or depraved.*fn11 The court held that
Id., 587 F. Supp. at 517 (emphasis added).
In In the Matter of Mark A., 145 Misc.2d 955, 549 N.Y.S.2d 325 (N.Y.
Fam. Ct. 1989), the Court analyzed the conduct of an officer who
approached a juvenile, believing that he was a runaway, and who thereafter
discovered the individual to be in illegal possession of a weapon. The
court interpreted a New York statute authorizing a police officer to
return to parents a child he or she reasonably believes to be a runaway.
*fn12 The court concluded that the officer's reasonable opinion should
be supported by probable cause to believe that the child has runaway,
id., 154 Misc.2d at 957, 549 N.Y.S.2d at 327, and applied this probable
cause standard to the facts of the case.
Based on our analysis of § 6324(4), parallel statutes from other
jurisdictions and case law interpreting those statutes, we conclude that
§ 6324(4) requires that an officer have probable cause to believe
that a juvenile has run away before taking that juvenile into custody.
Accordingly, the first question in our qualified immunity analysis is
whether the facts alleged, taken in the light most favorable to
plaintiff, show that the officers apprehended DeBellis without probable
cause to believe that she was the runaway for whom they were searching.
If, according to the facts alleged, probable cause to take DeBellis into
custody could not be found to be lacking, then plaintiffs have not shown
a violation of DeBellis' constitutional rights under the Fourth
Amendment, and the qualified immunity inquiry as to plaintiffs' mistaken
identity claim ends.
Although probable cause to arrest, and, analogously, to take a runaway
into custody, does not require that the officer have evidence sufficient
to prove guilt beyond a reasonable doubt, it does require more than mere
suspicion. "[P]robable cause to arrest exists when the facts and
circumstances withing the arresting officer's knowledge are sufficient in
themselves to warrant a reasonable person to believe that an offense has
been committed [or that a person is a suspected runaway] or ...