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Millar v. Windsor Township

August 23, 2006

MILDRED MILLAR, PLAINTIFF
v.
WINDSOR TOWNSHIP, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion (Doc. 34), filed by defendant Officer Tobin L. Zech ("Officer Zech"), for summary judgment on the claim of plaintiff Mildred Millar ("Millar"), brought pursuant to 42 U.S.C. § 1983 for alleged Fourth Amendment violations. For the reasons that follow, the motion will be denied.

I. Statement of Facts*fn1

On November 22, 2004, Millar was one of several passengers riding in a vehicle being driven in York County, Pennsylvania. (Doc. 39 ¶ 1; Doc. 40 ¶ 1; Doc. 42, Ex. C at 7-8.) While stopped at a traffic signal, an off-duty police officer knocked on the driver's window and, displaying a badge, stated that he had observed the vehicle swerving and instructed her to pull into a nearby parking lot. (Doc. 42, Ex. B at 6-7; Doc. 42, Ex. C at 6; Doc. 42, Ex. F at 5.) The driver complied. (Doc. 42, Ex. C at 8.)

Within a few minutes Officer Zech and another York Area Regional Police officer arrived at the scene. (Doc. 42, Ex. C at 8; Doc. 42, Ex. D at 4.) The officers parked their police cars behind and adjacent to the vehicle in which Millar was sitting. (Doc. 42, Ex. C at 12.) While the other officer questioned the driver, Officer Zech asked a passenger sitting in the front of the vehicle for her name and identification. (Doc. 35, Ex. B at 3; Doc. 42, Ex. E at 6.) Zech went to his patrol car and, upon returning, informed the passenger that she had provided false identification. Officer Zech pulled the passenger from the vehicle and placed her against one of the police cars. (Doc. 35, Ex. B at 3; Doc. 42, Ex. C at 15-16, 19; Doc. 42, Ex. E at 12; Doc. 42, Ex. F at 6.)

Millar exited the back of the vehicle in which she was riding and approached Officer Zech, whose back was to her, and asked "what seems to be the problem?" (Doc. 35, Ex. B at 3, 7; Doc. 42, Ex. C at 21, 23.) Officer Zech purportedly turned around and, without saying anything, extended his arm, striking Millar in the chest.*fn2 (Doc. 35, Ex. B at 3-4; Doc. 42, Ex. C at 23-24; Doc. 42, Ex. B at 22.) Millar fell backwards from the blow, striking her head and lower back on the macadam parking lot, and suffered injuries to her chest, knees, legs, and back. (Doc. 42, Ex. C at 24-25, 27-28, 38-39.) An ambulance was summoned, and Millar was evaluated by paramedics and released from the scene. (Doc. 35, Ex. B at 3.) Thereafter, Millar developed pain and discomfort in her lower back, legs, and hip, and underwent surgery and physical therapy. (Doc. 42, Ex. C at 35, 36, 38.)

The instant action was commenced in November 2004. The complaint sets forth claims pursuant to 42 U.S.C. § 1983 against Officer Zech for excessive use of force in violation of the Fourth Amendment, and for the torts of assault and battery and intentional infliction of emotional distress. The complaint also alleges that the York Area Regional Police Commission ("Police Commission") and Police Chief Thomas C. Gross ("Gross") failed to train Officer Zech on the appropriate use of force, that they "tolerated and ratified" officers' excessive use of force, and that Officer Zech, Gross, and the Police Commission's conduct violated various provisions of the Pennsylvania Constitution. (Doc. 1 ¶ 26, 34, 47, 48).

On January 31, 2005, defendants filed a motion to dismiss, arguing that Gross and Officer Zech are entitled to qualified immunity, that the Police Commission is not an entity subject to suit, that relief cannot be granted on the state constitutional and tort claims, and that punitive damages are unwarranted. (See Docs. 7, 8.) The court subsequently granted the motion in part, dismissing all state constitutional claims, the claims against the Police Commission, and the intentional infliction of emotional distress claim against Gross. (See Doc. 21.) Plaintiff subsequently filed a stipulation dismissing all claims except those against Officer Zech.*fn3 (See Doc. 31.)

Officer Zech filed the instant motion for summary judgment on May 15, 2006. Zech contends that there is insufficient evidence of a Fourth Amendment violation, and that he is entitled to qualified immunity. (See Doc. 34.) The motion has been fully briefed and is now ripe for disposition.

II. Standard of Review

"Summary judgment serves as a minimal but important hurdle for litigants to overcome before presenting a claim to a jury." Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 314 (M.D. Pa. 2004). Faced with such a motion, the adverse party must produce affirmative evidence, beyond the disputed allegations of the pleadings, in support of the claim. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal v. Jackson Township, 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003), aff'd, 94 Fed. Appx. 76 (3d Cir. 2004). "Such affirmative evidence-regardless of whether it is direct or circumstantial-must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see FED. R. CIV. P. 56(c), (e).

III. Discussion

Section 1983 of Title 42 of the United States Code, and other Reconstruction-era provisions of the Civil Rights Act, 42 U.S.C. §§ 1981-1986, offers private citizens a means to redress violations of federal law by state officials. See id. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...


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