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NIMLEY v. BAERWALD

United States District Court, E.D. Pennsylvania


May 26, 2004.

HORATIO NIMLEY, Plaintiff,
v.
HELMUTH J.H. BAERWALD, JOHN McGOWAN, NICOLA DePALLO, and MICHAEL PATRICK, Defendants

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

MEMORANDUM AND ORDER

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.

  STANDARD OF REVIEW

  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.

  DISCUSSION

  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 addition, he brings a claim against DePallo and Patrick for assault and battery.

 Claims Brought Pursuant to Title 42 U.S.C. § 1983:

  A plaintiff may bring a § 1983 action if he alleges that a person acting under color of state law deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983 (1994). Thus, in order to state a cause of action under § 1983, a plaintiff must demonstrate that "(1) the defendants acted under color of [state] law; and (2) their actions deprived [the plaintiff] of rights secured by the Constitution or federal statutes." Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997). "Section 1983 `is not a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 1870 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694, n.3 (1979)).

  Plaintiff, in the case at bar, alleges that Defendants while acting under color of law and pursuant to the policies and practices of the East Norriton Police Department, deprived plaintiff of his rights, privileges and immunities granted to him as a citizen of the United States — violating, in particular, 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, all stemming from being stopped, detained and searched without legal justification and physically abused and assaulted under the guise of restraining him. Defendants, in turn, do not dispute that the defendant officers acted under color of state law, but rather argue that plaintiff ultimately pled guilty to the crime which was being investigated and that the actions of the officers did not deprive plaintiff of any of his constitutional rights.

 Count I-Fourteenth Amendment Equal Protection

  In Count I of plaintiff's Amended Complaint, he alleges that Defendants DePallo and Patrick violated his Fourteenth Amendment equal protection rights by stopping, detaining, searching and physically abusing and assaulting him solely because of his racial or ethnic background. (Am. Complaint at paragraphs 48-49). He alleges that the actions of DePallo and Patrick were in furtherance of the official policy, custom or practice of the Township and defendants Baerwald and McGowan and at their direction. He seeks compensatory damages, costs and attorneys' fees and punitive damages against DePallo and Patrick.

  The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, § 1. Its central mandate is racial neutrality in governmental decision making. See, e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823 (1967); McLaughlin v. Florida, 379 U.S. 184, 191-192, 85 S.Ct. 283, 287-288 (1964) see also Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954). An allegation of racial discrimination in violation of the Constitution's guarantee of equal protection cannot survive unless the plaintiff establishes that the defendant acted with discriminatory intent. See Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048 (1976) (finding that a showing of discriminatory purpose is necessary to bring a claim of racial discrimination under the equal protection component of the Due Process Clause of the Fifth Amendment or under the Equal Protection Clause of the Fourteenth Amendment). In order to make an equal protection claim in the profiling context plaintiff must prove that the officers' actions "(1) had a discriminatory effect and (2) were motivated by a discriminatory purpose." Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002), citing Arlington Heights v. Metro Housing Dev. Corp, 429 U.S. 252, 97 S.Ct. 555 (1977); Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-2049 (1976); Chavez v. Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). The Third Circuit has recognized that in profiling cases it is often difficult to submit direct evidence that members of an unprotected class were not targeted and statistical information of discrimination may be the only means of demonstrating discriminatory effect. Bradley v. United States, 299 F.3d at 206, n. 11 (3d Cir. 2002). Such statistical information may be relevant to prove discriminatory effect, but is rarely alone sufficient to establish a violation of equal protection. Id.

  In this case plaintiff has not offered proof of discriminatory effect and has offered no proof that the officers' actions were done with the intent to discriminate against him because of his race as he alleges. Taking all of plaintiff's factual allegations as true, there is absolutely nothing to demonstrate that the officers stopped, detained and used force against plaintiff because of his racial or ethnic background. Plaintiff has not set forth anything other than his blanket assertion that he was stopped and detained because of his race to even argue that the officers acted with discriminatory intent. Although plaintiff notes that he is the only pedestrian the officers stopped, there is nothing to contradict Officer DePallo's testimony that plaintiff was the only pedestrian in the area. (DePallo dep at 58-59). There was no testimony to indicate that there were any other pedestrians, especially coming from the same wooded area, to even infer that plaintiff was stopped simply because of his race. In fact, according to the PennDOT employee, Danial Loftus, it was not common for pedestrians to come to the area where plaintiff was stopped. (Loftus dep at 20-21). In addition, plaintiff failed to provide any statistical evidence in an effort to demonstrate discriminatory effect. He offered no evidence to contradict Officer Depallo's testimony that in his experience there were not a greater number of racial and ethnic minorities that were suspects of crimes or that were arrested. (Depallo dep at 117-118).

  Given that there is no evidence of discriminatory intent, plaintiff cannot demonstrate a violation of equal protection. The officers testified that they stopped plaintiff because he was emerging from the same area where the dog had tracked the scent from the burglary. He was also wearing dark clothing, was not wearing a jacket in November, was sweating and had leaves and twigs in his hair. He was carrying a bag and refused to give the officers any information including his name. Plaintiff has not presented anything to contradict the officers' testimony as to why they stopped plaintiff or to infer that he was stopped, detained or assaulted because of his race. We therefore must grant defendants motion for summary judgment to the extent that it seeks dismissal of Count I of plaintiff's Amended Complaint, claiming a violation of plaintiff's right to equal protection.

 Count II — Fourth Amendment

  By way of the Second Count of plaintiff's Amended Complaint, he alleges that Defendants DePallo and Patrick violated his Fourth Amendment rights by stopping, detaining and searching him without legal justification and by physically abusing and assaulting him under the guise of restraining him. He alleges that the acts of DePallo and Patrick were done as servants, agents or employees of the Township serving at the direction of Defendants Baerwald and McGowan, in furtherance of the official policy, custom or practice of the Township and defendants Baerwald and McGowan and with their knowledge. Once again, plaintiff seeks compensatory damages, costs and fees and punitive damages against DePallo and Patrick.

  In an effort to undermine plaintiff's claims, defendants contend that the issue of whether they had probable cause to stop, detain and search plaintiff and whether they used excessive force is moot given the fact that plaintiff pled guilty to burglary for the events of November 10, 2000. In the alternative they claim that even if the issue is not moot they had probable cause to stop, detain and search plaintiff and used objectively reasonable force.

  As to their first argument, plaintiff entered a plea of guilty to two counts of burglary and criminal conspiracy. (Ex. B of Defendants' Motion). Defendants now claim that as a result of his guilty plea the issue of whether defendants violated plaintiff's constitutional rights is moot. However, plaintiff is not barred from litigating a Fourth Amendment claim in a section 1983 action because he entered a plea of guilty in state court. Haring v. Prosise, 462 U.S. 306, 321, 103 S.Ct. 2368, 2377 (1983); Linnen v. Armainis, 991 F.2d 1102 (3d Cir. 1993).

  The Supreme Court in Harinq v. Prosis held that under Virginia law, a guilty plea in a state criminal proceeding did not bar a subsequent section 1983 action where the issues to be determined in the later case were not actually litigated or were not necessary to support the judgment in the prior proceedings. Haring v. Prosise, 462 U.S. at 316-17, 103 S.Ct. at 2374-2375. The Supreme Court held that plaintiff's guilty plea in no way constituted an admission that his Fourth Amendment claims had no merit. Id., 462 U.S. at 317, 103 S.Ct. at 2374. "It is impermissible for a court to assume that a guilty plea is based on a defendant's determination that he would be unable to prevail on a motion to suppress evidence" since there are many reasons a defendant might choose to enter a guilty plea. Id. at 462 U.S. at 318, 103 S.Ct. at 2375-2376. While a guilty plea results in a defendant's loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment, "it does not follow . . . that a guilty plea is a `waiver' of antecedent Fourth Amendment claims that may be given effect outside the confines of the criminal proceeding. Id., 462 U.S. at 322, 103 S.Ct. at 2377. In addition, the court found that the justifications for denying habeas review of Fourth Amendment claims are not applicable to a Section 1983 action. Id.

  In the case of Linnen v. Armainis the Third Circuit applied the Supreme Court's reasoning in Haring and held that the plaintiff in a section 1983 action was able to pursue Fourth Amendment claims after entering a guilty plea because he had not pursued a suppression hearing and therefore the issues involved had not been "actually litigated" in state court. Linnen v. Armanis, 991 F.2d at 1106. In this case, just as in Linnen, plaintiff entered a plea of guilty without pursuing a suppression hearing and therefore did not litigate his Fourth Amendment claims in state court. Also, as in Linnen, there is no indication that the denial of plaintiff's PCRA petition was actually based upon the litigation of the merits of his Fourth Amendment claims. See Linnen, 991 F.2d at 1108. Therefore, we find that the fact that plaintiff entered a plea of guilty to two counts of burglary, one of which was the crime being investigated when he was stopped, detained and searched, does not serve as a defense to any Constitutional violations perpetrated by defendants and does not render plaintiff's claims moot. Id.

  We therefore must examine defendants' alternative argument that the officers' actions did not violate plaintiff's Fourth Amendment rights. The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963), provides in pertinent part that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. CONST., amend. IV. In order to establish a claim under the Fourth Amendment, a plaintiff must show that the actions of the defendant: (1) constituted a "search" or "seizure" within the meaning of the Fourth Amendment, and (2) were "unreasonable" in light of the surrounding circumstances. Parker v. Wilson, Civ. A. No. 98-3531, 2000 WL 709484, *3 (E.D. Pa. May 30, 2000) (citing Brower v. County of Inyo, 489 U.S. 593, 595, 600, 109 S.Ct. 1378 (1989). A seizure is a restraint of liberty by show of force or authority, see Florida v. Bostick, 501 U.S. 429, 434, 111 So. Ct. 2382, 2386 (1991), and it occurs "when a reasonable person in the position of the plaintiff would not feel free to decline a request of a government agent or to terminate an encounter with a government agent." Brown v. Commonwealth, Civ. A. No. 99-4901, 2000 WL 562743, *4 (E.D. Pa. May 8, 2000).

  The Fourth Amendment contains prohibitions against several types of seizures. First, it precludes a police officer from arresting and incarcerating a citizen except upon probable cause. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (stating that, in a § 1983 action, the key element of a cause of action for unlawful arrest is that the law enforcement agent arrested the plaintiff without probable cause); Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (stating that "an arrest based on probable cause could not become the source of a [§ 1983] claim for false imprisonment"). The United States Supreme Court has characterized probable cause as a "fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33 (1983). A showing of probable cause thus requires "proof of facts and circumstances that would convince a reasonable, honest individual that the suspected person is guilty of a criminal offense." Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993). Although probable cause calls for more than mere suspicion, it does not mandate that the evidence at the time of the arrest be sufficient to prove guilt beyond a reasonable doubt. Warlick v. Cross, 969 F.2d 303, 306, reh'g denied, (7th Cir. Sept. 2, 1992); Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Indeed, the ultimate finding of guilt or innocence, or even dismissal of charges arising out of an arrest and detention has no bearing on whether the arrest was valid. Pansy v. Preate, 870 F. Supp. 612, 617-618 (M.D. Pa. 1994), aff'd, 61 F.3d 896 (3d Cir. 1995) (citing Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218 (1967).

  A brief seizure of an individual by police, based on a reasonable suspicion of criminal activity, an investigatory detention, is a "narrowly drawn" exception to the probable cause requirement of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). The Supreme Court in Terry held that a police officer may stop an individual reasonably suspected of criminal activity, question him briefly, and perform a limited pat down frisk for weapons. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880. The touchstone in Terry was the reasonableness of the intrusion. Id. The Court balanced the need of law enforcement officials against the burden on the affected citizens and considered the relation of the policeman's actions to his reason for stopping the suspect. See United States v. Sharpe, 470 U.S. 675, 682-83, 105 S.Ct. 1568, 1573-74 (1985). The Supreme Court held in Terry v. Ohio, that probable cause is not required for an investigatory stop if an officer has a reasonable suspicion based upon articulable facts that criminal activity is afoot or that a crime is about to be committed. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. The Supreme Court has since held that investigatory stops based upon reasonable suspicion rather than probable cause, in cases where officers are investigating a crime which has already been completed, can also withstand Fourth Amendment scrutiny. U.S. v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680 (1985). The Court in U.S. v. Hensley held that "if police have a reasonable suspicion, grounded in articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." Id. Courts must look at the totality of the circumstances in making reasonable suspicion determinations. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744 (2002).

  The Fourth Amendment further prohibits the use of unreasonably excessive force when making an arrest or during investigative stops. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871 (1989). Whether a police officer used excessive force in the course of an investigatory stop or other "seizure" of a free citizen must be determined using a reasonableness test, giving careful attention to the facts and circumstances of each particular case, and recognizing that the use of some coercion necessarily inheres in the officer's right to make such an investigatory stop or seizure. Graham, 490 U.S. at 396, 109 S.Ct. at 1872. These facts and circumstances include "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. As the United States Supreme Court has held:

The "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officer['s] actions are "objectively reasonable" in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.
Id., 490 U.S. at 397, 109 S.Ct. at 1872. The "`reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Here, Defendants claim that they had legal justification to stop, detain and search plaintiff and to eventually arrest him. We find that based upon the facts known to the officers the initial investigative stop of plaintiff was certainly reasonable. The officer was informed that a suspect might be coming and plaintiff emerged from a wooded area to which the police dog had tracked a scent during the burglary investigation. Plaintiff was carrying a bag, had leaves and twigs in his hair, was not wearing a jacket or hat in November, both of which are easily removable, and he was wearing dark clothing. We find that these facts alone were sufficient justification for Officer Patrick to pull alongside of plaintiff to simply ask him questions. Even if a reasonable person would not have felt free to leave, meaning that there was a seizure, we find that this was not in violation of the Fourth Amendment, but rather was a valid Terry stop. At that time the officer saw that plaintiff was sweating and he refused to answer questions, including his name. Officer DePallo also testified that plaintiff's pants pockets were bulging and he thought perhaps he had a weapon. (DePallo dep at 88-89). Given the circumstances, the defendant was justified in asking plaintiff to place the bag on the car and to conduct a brief pat down for weapons (which it is not entirely clear that he actually did at that time). Once plaintiff placed his bag on the police car Officer DePallo saw the coin books inside. Although, the items listed from the burglary being investigated did not contain coin booklets, given that plaintiff refused to give any information about the bag, this may still have added to their suspicion, giving them even further justification for detaining plaintiff for questioning. The circumstances were sufficient to justify a brief search for weapons and continued detention during the Terry stop.

  After allowing plaintiff to leave and then discovering that a suspect had not been apprehended, the officers followed plaintiff inside the PennDOT building where he gave false names and social security numbers to the examiner. (Loftus dep at 30-31). After plaintiff finally gave the examiner his correct information, the officers approached plaintiff and told him that they would like to hold him for questioning. (Id. at 51). Given the circumstances we find that this was also proper and was a continuation of the Terry stop. They informed him that he was not under arrest but he was being held for investigatory detention, at which time plaintiff admittedly attempted to leave and pushed past the officers. According to Mr. Loftus, "[plaintiff] physically tried to bump or move his way around the police officers so as to leave . . ." (Id. at 52).

  It is undisputed that when the officers attempted to handcuff him in order to detain him, plaintiff began resisting and "fighting" with them. According to plaintiff's testimony, when he attempted to leave they informed him that they were going to handcuff him, but he struggled and did not allow them to place the second handcuff on his wrist. (Nimley dep at 67). There appears to be some dispute as to whether the officers knew plaintiff had outstanding warrants when they attempted to handcuff him or if they discovered that after the sergeant arrived at the scene. However, we do not find this to be a material fact. Even without examining whether the officers had probable cause to arrest plaintiff for this burglary or for the prior warrants at this time, the fact that the officers handcuffed plaintiff does not automatically convert an investigatory detention into an arrest. See Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995) (stating "there is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest"), citing United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989) (finding use of handcuffs and gun during investigatory stop reasonable). Rather, the "use of guns and handcuffs must be justified by the circumstances . . . Moreover, [the court] must look at the intrusiveness of all aspects of the incident in the aggregate." Baker v. Monroe Township, 50 F.3d at 1193. In this case, given that plaintiff was attempting to leave by pushing his way past the officers, we find that it was reasonable for the officers to use handcuffs to continue to detain him. As discussed below, even if the use of handcuffs was not justified by the factual circumstances, which we believe it was, and resulted in a constitutional violation, we find that the officers' belief that their conduct was justified by the facts under existing law was reasonable and that they would be entitled to the defense of qualified immunity. See Wiers v. Barnes, 925 F. Supp. 1079, 1089 (D. Del. 1996) (finding that defendant who had transported plaintiff while handcuffed was entitled to qualified immunity even if conduct violated Fourth Amendment, where acts were such that a reasonable officer could have committed them).

  As to plaintiff's claim of excessive force, according to plaintiff, during the struggle he was picked up and slammed to the floor, where he eventually was handcuffed after additional officers arrived. (Nimley dep at 67-69). When asked who picked him up, plaintiff testified that "when you're fighting you're not exactly focusing on who is doing what, so I don't know . . ." (Nimley dep at 67). Mr. Loftus, the PennDOT employee who was present, testified that "there was one police officer who had one hand behind Mr. Nimley's back. The other hand was waving in the air back and forth so as not to have his other hand cuffed . . ." Mr. Loftus further stated that during this struggle plaintiff was yelling out "my brother, my sister, help me, this is police brutality, look what they are doing." (Loftus dep at 52-53). According to plaintiff's testimony, even after one hand was cuffed he was determined not to allow the officers to place his second hand in cuffs and he attempted to make a scene during the struggle. Plaintiff testified that when the officers discussed handcuffing he was "thinking to [him] self, you're never going to get this hand handcuffed or it won't be easy getting it handcuffed." (Nimley dep at 72). According to Mr. Loftus, while plaintiff was resisting with his one hand flailing in the air, the officers and plaintiff ended up moving towards a wall, knocking over a divider and moving several computers. (Loftus dep at 54-57). According to Officer Patrick, while resisting, plaintiff twisted his hand causing the officer to injure his finger. (Patrick dep. at 92-93). He stated that he attempted to take out a second set of cuffs to interlock them so he would not have to get as close. Plaintiff grabbed at his belt and caused his microphone cord to get into the cuff so that he was cuffed to plaintiff. (Id. at 89). He also stated that plaintiff grabbed at the outside container of mace on his belt. (Id. at 91-92). Officer Patrick testified that he was unable to let go with one hand even to push the button on his microphone because plaintiff was attempting to grab at his belt. (Id. at 93). He also testified that during the struggle plaintiff backed them up towards the wall. (Id.).

  It is undisputed that plaintiff attempted to leave and even after the officers attempted to handcuff him he resisted by "fighting" with the officers. The officers were clearly required to use some degree of force to detain him given his resistence, especially after one of his hands was cuffed and he continued to resist. The issue is whether the degree of force used was reasonable. Plaintiff admits that he was not going to allow the officers to cuff his second hand and that he was fighting with them. He also admits that they were only able to cuff him after additional officers arrived. Plaintiff acknowledges that when the officers put their knees on him, allegedly punching and kicking him and "stepping all over him", they were trying to place the second handcuff on his wrist. They were asking him to stop struggling, but he still refused to allow them to cuff his second hand. (Nimley dep at 68-69). Given plaintiff's conduct, we find that the officers actions in allegedly bringing him to the floor in order to restrain him and to place the second handcuff on his wrist were reasonable and there was no violation of his Fourth Amendment rights.

  With regard to his alleged injuries, although plaintiff alleged in the Amended Complaint that he "suffered severe and permanent injury including bruises and fractures to his neck, and bruises about the body resulting in his hospitalization", this is not consistent with his testimony. Plaintiff indicated that prior injuries were aggravated. He had problems with his left chest, which flare up when he gets manhandled. He also testified that his neck and eye bothered him because he had just had eye surgery at Temple for an orbital fracture he sustained when he was beaten with a bat in a previous altercation. (Id. at 75-76). However, when asked whether he has any injuries or anything that bothers him resulting from the incident, he testified that he does not. (Id. at 88). While the presence of injuries may be relevant in an excessive force case, we do not find that plaintiff has presented any evidence that the force used by the officers to retrain him was excessive in light of the circumstances. We therefore do not find Fourth Amendment violations.

 Qualified Immunity

  In further effort to obtain a dismissal of all of the federal causes of action against them, defendants claim an entitlement to qualified immunity. The doctrine of qualified immunity shields government officials "for liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). Restated more precisely, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action assessed in light of the legal rules that were clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 So. Ct. 303, 3038 (1987) (quoting Harlow, 457 U.S. 819);*fn2 see also Pro v. Donatucci, 81 F.3d 1283, 1286 (3d Cir. 1996). 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, 1793, reh'g denied, 501 U.S. 1265, 222 S.Ct. 2920 (1991).

  The qualified immunity analysis breaks down into two issues. First, the court must determine whether the facts, taken in the light most favorable to the plaintiff, show a constitutional violation. If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end and the officer is entitled to immunity. Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). Once plaintiff produces evidence of a constitutional violation, courts evaluating a qualified immunity claim must proceed to the second step and decide whether the constitutional right was clearly established. Id. In other words, the reviewing court must query whether, in the factual scenario established by the plaintiff, a reasonable officer would have understood that his actions were prohibited. Id. at 136. "If it would not have been clear to a reasonable officer what the law required under the facts alleged, he is entitled to qualified immunity." Id. at 136-137. If, on the other hand, the requirements of the law would have been clear, the officer must stand trial. Id. at 137.

  Using the context of an excessive force case, the United States Supreme Court has recently undertaken to clarify the standard for qualified immunity. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2000), it held that:

[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Id., 533 U.S. at 205. Thus, an officer may contend that he reasonably, but mistakenly, believed that his use of force was justified by the circumstances as he perceived them. In the event of such a reasonable, but mistaken belief, an officer is entitled to qualified immunity. Id. at 206.

  Defendants now assert that the federal claims against them must be dismissed on grounds of qualified immunity. Specifically, they argue that they conducted a lawful and proper stop of plaintiff under the circumstances and plaintiff's own conduct brought about his arrest. In addition, they once again note that plaintiff pled guilty.

  We turn first to the threshold question of whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officers' conduct violated a constitutional right. As we noted above, the defendant officers' actions in stopping and detaining plaintiff and in using force to restrain him were legally justified and did not violate plaintiff's constitutional rights. Therefore, we need not go any further to determine that the officers are entitled to the defense of qualified immunity. However, as noted above, even if plaintiff's Fourth Amendment rights were violated, we find that the officers are entitled to qualified immunity. First, even assuming that the officers did not yet have probable cause to arrest plaintiff at the time he was handcuffed and that the circumstances of this case did not warrant handcuffing plaintiff during an investigatory detention, (which we find they did), the defendants' belief that such conduct was warranted under the law was still reasonable. See Wiers v. Barnes, 925 F. Supp at 1089. In addition, even if the degree of force used by the officers was found to be excessive and a violation of plaintiff's Fourth Amendment rights, we find that defendants would still be entitled to qualified immunity. Given the undisputed facts including the fact that plaintiff was attempting to push past the officers, that he continued to fight and resist with one hand cuffed and that two officers were unable to restrain him in order to handcuff him, it was reasonable for the two officers and additional officers arriving at the scene to believe that it was necessary to restrain plaintiff and to use a degree of force including taking plaintiff to the ground in order to handcuff his second hand. Even assuming that the degree of force used was excessive, we find that the officers' belief that such force was necessary was reasonable, even if mistaken. Even if the officers' conduct was not justified by the circumstances (which we find it was), they engaged in conduct in which a reasonable officer could have engaged and are therefore entitled to qualified immunity. See Pikel v. Garrett, 55 Fed. Appx. 29, 33, 2002 WL 31479064, *4 (3d Cir. (Pa) Nov. 7, 2002)(holding that where the law established was highly dependant upon a balance of circumstances the reasonableness of force was a "close call" and defendant was therefore entitled to qualified immunity); See also Wiers v. Barnes, 925 F. Supp. 1079, 1088 (D. Del. 1996) (holding defendant was entitled to qualified immunity where even if the officers' conduct was not warranted by the circumstances and there was a violation, the officer engaged in conduct in which a reasonable officer would have engaged). Accordingly, Count II of plaintiff's Amended Complaint, alleging Fourth Amendment violations must be dismissed. Count III — Fourteenth Amendment Substantive Due Process

  Plaintiff alleges in Count III of his Amended Complaint that Defendants DePallo and Patrick violated his substantive due process rights by stopping, detaining and searching him without legal justification and by physically assaulting him. In this Count he alleges that Defendants Baerwald and McGowan "had learned of previous incidents involving at a minimum defendant DePallo wherein this officer had used unreasonable force on others he had arrested." (Complaint at 73). He claims that Baerwald and McGowan took no action to discipline DePallo or to order him not to repeat such incidents, thus tacitly authorizing such conduct. (Am. Complaint at paragraph 74). Plaintiff also alleges a failure to train and to discipline on the part of defendants Baerwald and McGowan. (Id. at paragraphs 75-82). Finally, he alleges that Baerwald and McGowan approved or ratified the officers' conduct and seeks compensatory damages, costs and fees and punitive damages. (Id. at paragraphs 83-89).

  We find that plaintiff's claims are not actionable as a violation of substantive due process. See Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989). In both Graham v. Connor and Albright v. Oliver the Supreme Court held that "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. at 274, 114 S.Ct. at 813, citing Graham v. Connor, 490 U.S. at 395, 109 S.Ct. at 1871. In Albright the Supreme Court held that the petitioner's substantive due process claim arising from an arrest without probable cause could afford him no relief. The Court stated that it expressed no view as to whether his claims would succeed under the Fourth Amendment because he had not presented that question. Albright, 510 U.S. at 275, 114 S.Ct. at 814.

  In this case, in addition to plaintiff's substantive due process claim pertaining to his stop, detention, search and the officer's use of excessive force, plaintiff has also alleged these same claims were in violation of the Fourth Amendment in Count II of his Amended Complaint*fn3. Since these claims are appropriate to be considered in terms of the Fourth Amendment, they will not be addressed in terms of a substantive due process claim. Therefore, Count III of plaintiff's Amended Complaint must also be dismissed.

 State Law Causes of Action-Assault and Battery-Count IV: In the final Count of plaintiff's Amended Complaint, plaintiff alleges a state law claim of assault and battery. He asserts that defendants DePallo and Patrick acting within the scope of their authority as officials, employees, agents and/or representatives of the Township unlawfully assaulted and battered him. Plaintiff claims that their actions were so malicious, intentional and displayed such a reckless indifference that punitive damages are warranted. Defendants, in turn, respond that since Count IV of plaintiff's Amended Complaint is premised upon supplemental jurisdiction pursuant to 28 U.S.C. § 1367 and no federal questions survive, this court no longer has jurisdiction over this Count of the Complaint. In addition, they argue that the claim is barred by the Pennsylvania Political Sub-Division Tort Claims Act.

  We agree that since there are no federal questions remaining this Court should decline to exercise jurisdiction over plaintiff's state law claims. See 28 U.S.C. § 1367 (c)(3); See also Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (holding that if federal claims are disposed of prior to trial, the non-federal claims should likewise be dismissed). Therefore Count IV of plaintiff's Amended Complaint must also be dismissed. Accordingly, defendants' Motion will be granted and plaintiff's Amended Complaint will be dismissed in its entirety. An appropriate Order follows. ORDER

  AND NOW, this day of May, 2004, upon consideration of the Motion For Summary Judgment pursuant to Federal Rule of Civil Procedure 56, by defendants, Helmuth J.H. Baerwald, John McGowan, Nicolla DePallo, and Michael Patrick, and the Response of plaintiff Horatio Nimley, it is hereby ORDERED that the Motion is GRANTED and the plaintiff's Amended Complaint is DISMISSED.

  It is so ORDERED.

  BY THE COURT:


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