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February 17, 2004.

MICHAEL SNELL, ET AL., Plaintiffs,
ROBERT DUFFY, ET AL., Defendants

The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge


Plaintiff Michael Snell has brought this civil rights action alleging, on behalf of his minor son Woodrow Snell, that Pennsylvania State Trooper Jeffrey Wlock violated his son's constitutional right to be free from excessive force by a law enforcement officer.*fn1 Because the court concludes that no reasonable jury could find that Trooper Wlock's use of force against Woodrow was objectively unreasonable under the circumstances of this case, the court shall grant the defendant's motion for summary judgment in its entirety. Page 2


  The relevant facts pertaining to plaintiff Woodrow Snell's excessive force claim are as follows.*fn2 On November 13, 1999, Pennsylvania State Troopers Robert J. Duffy and Jeffrey Wlock responded to a report that an individual had pointed a gun at three children. The incident was reported by the parents of Tyler and Brian Brady and Zachary Buck, who were neighbors of Michael Snell and his son Woodrow Snell.

  At the scene, Trooper Duffy interviewed the alleged victims, the Brady and Buck children, who claimed that Michael Snell had pointed a gun at them on three separate occasions and screamed at them. After inspecting the area where the alleged incident took place, and finding no physical evidence to support the boys' claim, Trooper Duffy interviewed Michael Snell at his home. During the interview, Snell confirmed that he owned a ".22" and that earlier that afternoon he and his son had gone hunting in a field behind the Bradys' home, taking with them that particular gun. Snell also confirmed that he had seen the Brady and Buck children in the backyard as he and his son walked by. Although Trooper Duffy did not reveal the nature of the incident he was investigating, Snell asked him, "Are you here because Page 3 somebody pointed an unloaded and unbolted gun at these children."*fn3

  Trooper Duffy then asked Michael Snell for the gun. Snell proceeded into his shed to get the gun but would not allow Trooper Duffy to enter the shed without a warrant. Despite Snell's refusal to allow the officers to enter the shed, as Snell proceeded to the shed and retrieved the rifle, Trooper Wlock entered the shed behind him,*fn4 pushed Woodrow Snell aside (who at the time was standing in between Trooper Wlock and Michael Snell), and took the weapon from Michael Snell.

  As a result of being pushed by Trooper Wlock, Woodrow Snell fell into an ice bin causing him to be injured on an exposed screw.*fn5 Wlock left the shed with the gun and turned it over to Trooper Duffy. Troopers Duffy and Wlock then left the scene with Snell's rifle as potential evidence of the commission of a crime. Page 4


  A. Standard for Summary Judgment

  A court may grant summary judgment only when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" only if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is "genuine" only when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. In determining whether there exist genuine issues of material fact, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).

  Although the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, in a case such as this, where the non-moving party is the plaintiff, and therefore, bears the burden of proof at trial, that party must present affirmative evidence sufficient to establish the existence of each element of his case. Id. at 306 (citing Page 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Accordingly, a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment, see Celotex, 477 U.S. at 324, but rather, she "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Service., 214 F.3d 402, 407 (3d Cir. 2000).

  B. Excessive Force Claim

  Plaintiff alleges that Trooper Wlock's action of pushing Woodrow Snell was not objectively reasonable and that it constituted excessive force under the Fourth Amendment.*fn6 The Supreme Court has held that all claims that law enforcement officers have used excessive force are to be analyzed under the Fourth Amendment "reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). Thus, plaintiff's excessive force claim is properly analyzed under the Fourth Amendment, rather than the Fourteenth Amendment. Id.

  In assessing plaintiff's excessive force claim under the Fourth Amendment, the issue is "whether the [officer's] actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. The Page 6 test for objective reasonableness "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396; Shararr v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997). "Not every push or shove, even if it may later seem ...

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