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May 26, 2004.


The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge


The action currently pending before the Court involves a civil rights claim by plaintiff Horatio Nimley against defendants Township Manager, Helmuth J. H. Baerwald, Chief of Police John McGowan, and police officers, Nicola DiPallo and Michael Patrick (collectively "defendants"), all of whom were employed by East Norriton Township. The defendants are named both individually and in their official capacities as officers, agents and/or employees of the Township of East Norriton. Plaintiff alleges various claims under Title 42 U.S.C. § 1983 stemming from an alleged improper stop, detainment, search and excessive use of force and also brings a state law claim of assault and battery. Defendants now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c). Upon consideration of both the Motion and the plaintiff's Response, we now grant the Motion and dismiss plaintiff's Amended Complaint with prejudice. I. FACTUAL BACKGROUND

Plaintiff alleges that on November 10, 2000, while in the parking lot of the Pennsylvania Department of Transportation ("PennDOT") located on Swede Road, East Norriton, Pennsylvania, he was improperly stopped by Defendant, Officer DePallo. (Am. Complaint at paragraphs 13-14). Earlier on November 10, 2000, Cora Baratucci informed police that when she arrived home with her grandson, an unknown male wearing dark clothing ran from her bedroom and down the steps to the basement area of her home and fled out her back door. (Affidavit of Probable Cause). She reported missing jewelry from her home. (Id.) A canine unit was called to the scene and picked up a scent at the rear door leading to a wooded area and the officers followed the dog across woods towards Swede Road. (Id.) While investigating this report, Defendant DePallo observed plaintiff on Swede Road, about a half mile from Ms. Baratucci's home.

  Defendants claim that plaintiff fit a generalized description of the man who burglarized the home of Carla Baratucci and he emerged from the wooded area where a canine police dog was following a scent. In addition, defendants state that plaintiff had leaves and twigs in his hair, was sweating and was carrying a white plastic bag. According to Officer DePallo's report, Ms. Baratucci informed him that she was unable to determine what skin color the suspect had, but indicated that he was wearing a baseball cap, a black jacket and had a small stocky build. (Incident Report). Plaintiff was wearing dark pants and a dark shirt when he was stopped, but was not wearing a hat or jacket. Officer DePallo testified that he decided to stop plaintiff after receiving a call from Officer Patrick that there might be a suspect to the burglary approaching (DePallo dep at 74). He testified that "[he] decided to stop the individual because it was odd for somebody to have grass and leaves protruding out of their hair. It was November. I don't believe he was wearing a jacket. He was sweating. And it was just odd to [him]". (Id. at 74). Officer Patrick testified that when he saw plaintiff "[his] first thought was, here comes a guy out of the area where the dog is working on a — the dog's on a trail in there. He comes out into the road right next to it. He's fitting the description, he's carrying a bag, he's sweating and he's got dark clothing." (Patrick dep at 58).

  In order to buy some time for backup to arrive, Officer Depallo falsely informed plaintiff that he was looking for someone who had escaped from a mental institution. (Depallo dep at 75). After plaintiff informed the officer that he had never been admitted to a mental hospital, the officer asked for his consent to search plaintiff and the bag he was carrying. (Nimley dep at 49). Plaintiff asked whether he was being arrested or charged with a crime and after being told that he was not, he advised the officer that he would not consent to a search and that he was leaving. (Am. Complaint at paragraphs 20-22). Plaintiff claims that notwithstanding his refusal to consent to a search, Officer DePallo demanded that he place his bag on the hood of the police car and fearing reprisal he complied with the officer's demand. (Am. Complaint at paragraphs 23-24). Once plaintiff placed the bag on the vehicle, the officer was able to see inside the bag and saw blue coin booklets. (Depallo dep at 82). According to plaintiff's testimony, Officer Depallo informed him that he was going to pat him down for weapons and asked him to place his hands on the car, but did not actually pat him down at that time. (Nimley dep at 51). Defendant Officer Patrick then arrived on the scene. Plaintiff claims that he was eventually "briefly frisked around the mid-section area for weapons." (Id. at 57). He claims that after he informed Patrick that he had been misidentified as a patient from a mental hospital*fn1, he went into the PennDOT building. According to Officer Depallo, they did not stop plaintiff from leaving to go into the building because they had received a call over the police radio leading them to believe that a suspect had been apprehended. (Depallo dep at 89).

  After receiving a second call and being informed that a suspect had not been apprehended, Defendants Patrick and DePallo followed plaintiff into the facility. (Id. at 91). According to Officer Patrick, he approached plaintiff and told him that they needed his real name, and then followed him to the counter where he was going to get his license. (Patrick dep at 83-84). Plaintiff proceeded to give false names and/or social security numbers to the examiner. (Loftus dep at 30-31; Depallo dep at 92-93). Plaintiff once again inquired as to whether he was being arrested and was told that he was being detained in investigatory detention until the sergeant arrived. (Patrick dep at 86). Once he gave his correct name to the examiner, the officers were able to ascertain that there were outstanding warrants for plaintiff, but it is not entirely clear whether they became aware of the warrants prior to the sergeant's arrival. (Depallo dep. at 93-94, 106).

  According to plaintiff, after being informed that he was not being arrested he attempted to leave, at which time DePallo and Patrick grabbed him. After plaintiff told the officers that he was leaving, DePallo informed him that he was "not going anywhere" and directed Patrick to cuff one of plaintiff's hands while he cuffed the other. (Nimley dep at 66). Plaintiff claims in his complaint that Depallo and Patrick "proceeded to pick plaintiff up and slam plaintiff to the floor, repeatedly punching and kicking him for at least 4-5 minutes" and he was then placed in custody. (Am Complaint at paragraphs 38-39). He stated during his deposition that he was on the floor when they were trying to handcuff him and "they were stepping all over [him], kicking [him] and punching [him] and stuff like that." (Nimley dep at 69). According to the officers, plaintiff attempted to push them out of the way, at which time they attempted to cuff him. (Patrick dep at 86-88; Depallo dep at 94-96). Officer Depallo and Officer Patrick both testified that during the struggle plaintiff attempted to grab at Officer Patrick's duty belt. (Depallo dep at 98-99; Patrick dep at 92). After additional officers arrived they were able to take plaintiff to the floor and placed the second cuff on his hands. (Patrick dep at 93; Nimley dep at 73). Once plaintiff was placed in custody the officers patted him down and discovered the jewelry from the burglary in his pockets, but no weapons. (Depallo dep at 109). Plaintiff asked to see a nurse when he was being transported to the police station. (Nimley dep at 75). After some time at the station, he was transported by helicopter to Abington Memorial Hospital where he remained overnight for treatment and observation. Finally, plaintiff alleges in his Amended Complaint that Officer DePallo was fired from the East Norriton Police Department "sometime between November 15, 2000 and April 26, 2001 for among other things, having too many civilian and other complaints lodged against him." (Am. Complaint at paragraph 41).

  Plaintiff originally filed a pro se Complaint in this matter, which was dismissed on April 23, 2003, at which time he was granted leave to file an Amended Complaint. An Amended Complaint was then filed against Officers Depallo and Patrick and Township Manager, Helmuth Baewrwald and Police Chief, John McGowan, all in both their individual and official capacities. Defendants now move, under Fed. R. Civ. P. 56(c) for summary judgment.


  Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "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 judgment as a matter of law." FED R. CIV. P. 56(c); see also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986); Williams v. Borough of West Chester, 891 F.2d 458, 463-464 (3d Cir. 1989). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue, a reasonable factfinder must be able to return a verdict (or render a decision) in favor of the non-moving party. Id.

  On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Tiger Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. See Anderson, 477 U.S. at 255.

  Once the movant has carried its initial burden, Rule 56(e) shifts the burden to the nonmoving party as follows:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
FED. R. CIV. P. 56(e). However, to raise a genuine issue of material fact "`the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant,' but simply must exceed the `mere scintilla' standard." Petruzzi's ICA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 510 U.S. 994 (1993). Summary judgment may be granted only if, after viewing all evidence in the light most favorable to the non-movant, no jury could decide in that party's favor. Tigg Corp., 822 F.2d at 361.


  Plaintiff brings this action pursuant to Title 42 U.S.C. § 1983, alleging violations of his Fourteenth Amendment right to equal protection, his Fourth Amendment right to be free of unreasonable search and seizure, and his Fourteenth Amendment right to substantive due process. In ...

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