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Shilling v. Brush

January 22, 2007

CAROL SHILLING, PLAINTIFF,
v.
ERIC P. BRUSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John E. Jones III United States District Judge

Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion for Summary Judgment ("the Motion"), filed by Defendants Eric Brush, John Walker, Bruce Korty, and the Borough of Montrose ("Defendants") on October 2, 2006. (Rec. Doc. 40-1). For the reasons that follow, the Motion will be granted in part and denied in part.

PROCEDURAL BACKGROUND:

On April 29, 2005, Plaintiff Carol Shilling ("Plaintiff" or "Shilling") filed her first Complaint in this action. (Rec. Doc. 1). However, on August 26, 2005, this Court entered an Order granting a Motion to Dismiss filed by the Montrose Police Department (doc. 7) and granting Plaintiff leave to file an Amended Complaint. (Rec. Doc. 16). On or about September 16, 2005, Plaintiff filed her Amended Complaint. (Rec. Doc. 17).

On October 2, 2006, Defendants filed the instant Motion. (Rec. Doc. 40). Although no Reply Brief has been filed, the time in which to do so has expired and Defendants have informed the Court that no such brief is forthcoming. (See Rec. Doc. 55). The Motion is, therefore, ripe for disposition.

STANDARD OF REVIEW:

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. See id. at 325.

Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

STATEMENT OF RELEVANT FACTS:

On December 3, 2002, Plaintiff had a 1997 Chevrolet S-10 truck ("the truck"), with a recorded mileage of approximately 86,000 miles, inspected at Ted's Garage.*fn1 (Rec. Docs. 40, ¶¶ 2, 5; 50, ¶¶ 1, 2). On February 16, 2003, and May 2, 2003, Plaintiff was operating the truck, which was owned by Wildlife Rescue, a non-profit organization that Plaintiff apparently organized, without an inspection sticker or a registration card. (Rec. Docs. 40, ¶¶ 1, 5, 6; 50, ¶¶ 1, 5, 6).

On February 16, 2003, Plaintiff was stopped by Officer Eric Brush ("Officer Brush") because he claimed that she ran a stop sign at the intersection of Chenango Street and Prospect Street in Montrose. (Rec. Docs. 40, ¶ 4; 41, Defs.' Exh. 4 at 77). Plaintiff maintains that she did not run the stop sign (docs. 50, ¶ 4; 52, Pl.'s Exh. W, ¶ 33; 41, Defs.' Ex. 4 at 81), and notes that she was not ticketed for failing to stop at a stop sign (docs. 50, ¶ 4; 52, Pl.'s Exh. W, ¶ 50). Rather, Officer Brush gave Plaintiff a ticket containing two citations, for driving an unregistered and uninspected vehicle. (Rec. Docs. 40, ¶ 5; 41, Defs.' Exh. 4 at 87; 50, ¶¶ 4, 5).

Plaintiff was found guilty by a Magistrate for the citations that she received during the February 16, 2003 traffic stop. (Rec. Docs. 40, ¶ 6; 50, ¶ 6). Plaintiff then appealed the Magistrate's conviction to the Susquehanna County Court. (Rec. Docs. 40, ¶ 7; 50, ¶ 7). Plaintiff claims that when she filed the appeal, she asked whether she could continue to drive the truck until the appeal was decided and was told that she could continue to do so. (Rec. Docs. 50, ¶ 8; 52, Pl.'s Exh. W, ¶ 56; 41, Defs.' Exh. 4 at 103-04).

On May 2, 2003, while Plaintiff's appeal was still pending before the Susquehanna County Court (docs. 40, ¶ 8; 50, ¶ 9), she was stopped by Officer Brush because he claimed, again, that she had failed to stop at the intersection of Chenango Street and Prospect Street in Montrose (docs. 40, ¶ 10; 50, ¶ 10).

Once again, Plaintiff denies that she failed to stop at the stop sign. (Rec. Docs. 50, ¶ 10; 52, Pl.'s Exh. W, ¶ 61; 41, Defs.' Exh. 4 at 94-95). In fact, Plaintiff claims that although she could not ascertain the identity of the Officer inside the vehicle at the time, Officer Brush's police cruiser and her truck arrived at the intersection of Chenango and Prospect Streets at the same time, both vehicles stopped, and she waved her left hand to motion the police cruiser to go ahead. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 59-65). Plaintiff claims that the police cruiser "just sat there," so after being "at a dead stop" for approximately 10 seconds, she made a left turn onto Prospect Street. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 65-66). Plaintiff also notes that Officer Brush testified that he was "'several hundred feet' from the intersection" when he saw Plaintiff's alleged failure to stop. (Rec. Docs. 50, ¶ 10; 41, Defs.' Exh. 2 at 10).

Plaintiff and Defendants also disagree about the events that transpired after Officer Brush pulled her over on May 2, 2003. Defendants claim that after Plaintiff pulled over, Officer Brush advised Plaintiff that she was not supposed to be driving the truck because of its lack of inspection sticker and lack of registration card, and that he was going to impound her truck. (Rec. Doc. 40, ¶ 11). In contrast, in Plaintiff's affidavit, she claims that Officer Brush did not mention the missing inspection sticker. (Rec. Doc. 52, Pl.'s Exh. W, ¶ 79). Rather, Plaintiff contends that after Officer Brush accused her of not stopping at the stop sign, he said that she should not be driving the truck because of the registration problem. (Rec. Doc. 52, Pl.'s Exh. W, ¶ 78). Plaintiff claims that she then advised Officer Brush that her earlier citations were being appealed and that she had been told that she could drive the truck while the appeal was pending. (Rec. Doc. 52, Pl.'s Exh. W, ¶ 80). Plaintiff claims that it was at this point that Officer Brush said he did not care about the appeal and that he was going to impound her truck.*fn2 (Rec. Doc. 52, Pl.'s Exh. W, ¶ 80).

Moreover, Plaintiff claims that Officer Brush's demeanor throughout the May 2, 2003 traffic stop was "worse than the first stop" and violent. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 75, 86). She also claims that he kept his right hand on his gun at all times during the stop. (Rec. Doc. 52, Pl.'s Exh. W, ¶ 76). She contends that in response to her expressed concerns about the implications of impounding the vehicle in which she was transporting a cat under anesthesia, he screamed at her so emphatically that he spit on her. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 84-85, 88). Further, Plaintiff claims that as a result of Officer Brush's behavior during the stop, she believed that he was going to "get physical" with her and/or "rough [her] up pretty badly" and/or hit her, and that she was afraid. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 89, 91, 93).

Thus, Plaintiff claims that Officer Brush's threatening behavior caused her to flee the scene of the May 2, 2003 traffic stop in the hopes of finding a witness. (Rec. Doc. 52, Pl.'s Exh. W, ¶¶ 85-95). Plaintiff contends that she did not plan to drive all the way home. (Rec. Doc. 52, Pl.'s Exh. W, ¶ 95). Whatever Plaintiff's motive and intention, she drove away from the scene of the stop and to her home, without permission of Officer Brush. (Rec. Docs. 40, ¶ 12; 50, ¶ 12; 41, Defs.' Exh. 2 at 15).

Plaintiff and Defendants agree that Plaintiff was ultimately pursued by both Officer Brush and Officer John Walker ("Officer Walker"): Officer Brush in his police cruiser and Officer Walker in his personal vehicle. (Rec. Docs. 40, ¶ 13; 50, ¶ 13; 41, Defs.' Exh. 2 at 17, Defs.' Exh. 4 at 120). Plaintiff contends that she did not know who Officer Walker was, that he wearing a baseball style cap in his personal vehicle, a "small white Jeep-looking vehicle,"and that he tried to "run [her] off the road" twice. (Rec. Docs. 50, ¶ 13; 41, Defs.' Exh. 4 at 124-127). However, Officer Brush testified that Officer Walker's hat said "police" on it and that he was merely attempting to stop Plaintiff. (Rec. Doc. 41, Defs.' Exh. 2 at 19).

After a "chase" that even Officer Brush characterized as "so slow," Plaintiff and the two Officers in pursuit arrived at her home. (Rec. Docs. 41, Defs.' Exh. 2 at 2, l. 23; 40, ¶ 13; 50, ¶ 13). Plaintiff then ran inside her home and locked the door, allegedly because she feared for her safety. (Rec. Docs. 50, ¶ 14; 41, Defs.' Exh. 4 at 140). Although Officers Brush and Walker did not enter Plaintiff's home because they heard barking dogs and allegedly feared for their safety (docs. 40, ¶ 15; 41, Defs.' Exh. 2 at 22), Officers Brush and Walker tried the doorknob and then yelled into the home (doc. 41, Defs.' Exh. 2 at 22). Plaintiff contends that Officer Brush broke the lock on her screened door. (Rec. Doc. 50, ¶ 14).

In his deposition, Officer Brush testified that after deciding not to enter Plaintiff's home, he stayed outside of the front door while Officer Walker went around the side of the house. (Rec. Doc. 41, Defs.' Exh. 5 at 43). Defendants also allege that while Officer Walker was in Plaintiff's backyard, a neighbor advised him that Plaintiff owned a shot gun. (Rec. Doc. 40, ¶ 16). Plaintiff admits owning a 22 rifle, but denies that the Officers were given any indication that they should fear for their safety. (Rec. Doc. 50, ¶ 16).

Meanwhile, Plaintiff claims that she dialed 911 and was put through to the Pennsylvania State Police, who persuaded her to go back outside. (Rec. Docs. 50, ¶ 14; 41, Defs.' Exh. 4 at 140-46). However, the State Police did not release the tape of the alleged conversation that was allegedly requested because they could not find it. (Rec. Doc. 41, Defs.' Exh. 4 at 146).

Sometime after she had entered her home, Plaintiff emerged from it and was advised that she was under arrest. (Rec. Docs. 40, ¶ 17; 50, ¶ 17). Plaintiff claims that she was hyperventilating when she exited. (Rec. Docs. 50, ¶ 17; 52, Pl.'s Exh. W, ¶ 137). After informing the Officers that she needed to go back into the home to lock her basement door, she did so. (Rec. Docs. 40, ¶ 18; 41, Defs.' Exh. 4 at 149; 50, ¶ 18).

Plaintiff then re-emerged from the home and onto her porch. (Rec. Docs. 40, ¶ 19; 50, ¶ 19). Plaintiff contends that she came out with her hands up and that Officers Brush and Walker had their hands on their guns. (Rec. Docs. 50, ¶ 19; 41, Defs.' Exh. 4 at 151). However, Officer Walker claims that her arms were by her side and she walked toward her truck. (Rec. Doc. 41, Defs.' Exh. 6 at 30).

Plaintiff and Defendants also disagree as to what happened next. Plaintiff claims that she: walked off the deck with [her] hands up, [she] made the turn, [she] threw [her] keys in the truck . . . [She] put [her] hands down as -- and the Officers were behind [her] -- as [she] was right next to the truck, and as soon as [she] put [her] hands down Officer Brush grabbed [her] left arm, twisted it very severely, and slammed [her] into the truck. (Rec. Doc. 41, Defs.' Exh. 4 at 152). Plaintiff contends that she was handcuffed so violently that her left hand hit the back of her head and that the handcuffs were so tight that her hands were turning blue. (Rec. Docs. 50, ¶ 20; 52, Pl.'s Exh. W, ¶¶ 147, 157). Plaintiff also claims that Officer Brush "ransacked" her truck without consent and took all of her paperwork relating to the truck's registration and inspection issues. (Rec. Docs. 50, ¶ 20; 41, Defs.' Exh. 4 at 154).

However, Defendants contend that following Plaintiff's re-emergence from the house, she walked toward her truck, and, in fact, started to enter the vehicle. (Rec. Doc. 41, Defs.' Exh. 6 at 30). Officer Walker testified that he followed Plaintiff, advised her that she was under arrest, removed her from the truck, and began to handcuff her. (Rec. Doc. 41, Defs.' Exh. 6 at 30-31). Officer Walker also testified that Officer Brush aided him in handcuffing Plaintiff after she made an effort to resist. (Rec. Doc. 41, Defs.' Exh. 6 at 31). Further, Officer Brush testified that Plaintiff consented to the search of her truck. (Rec. Doc. 41, Defs.' Exh. 5 at 30-31).

At Plaintiff's request, Officer Walker loosened Plaintiff's handcuffs and then reapplied them in front of her. (Rec. Doc. 40, ¶ 21; 50, ¶ 21). Plaintiff claims that before Officer Walker loosened the handcuffs, he asked her what she had done, she replied that there was a problem with her registration, and Officer Walker's jaw dropped upon hearing her reply. (Rec. Docs. 50, ¶ 21; 52, Pl.'s Exh. W, ¶ 156). Plaintiff also claims that Officer Brush was not happy about the fact that Officer Walker loosened her handcuffs. (Rec. Docs. 50, ¶ 22; 52, Pl.'s Exh. W, ¶ 158; 41, Defs.' Exh. 4 at 158-59).

Plaintiff was then taken to the Montrose Police Department, where at some point thereafter, her handcuffs were removed and she was permitted to use the telephone. (Rec. Docs. 40, ¶ 22; 50, ¶ 22). Plaintiff claims that Officer Walker removed her handcuffs against the wishes of Officer Brush. (Rec. Docs. 50, ¶ 21; 52, Pl.'s Exh. W, ¶ 158; 41, Defs.' Exh. 4 at 158-59).

Plaintiff notes that Officer Brush did not have the camera on in his police cruiser, which if operating would have recorded the May 2, 2003 stop, and that as a result, the facts of the incident are a matter of her word against Officer Brush's. (Rec. Doc. 50, ¶ 26; 52, Pl.'s Exh. 2, ¶¶ 27-28). Plaintiff also notes that under 3.9.1 of the Montrose Police Department's training manual, officers are responsible for checking "the police car and the equipment in it at the start of duty." (Rec. Doc. 50, ¶ 26; 52, Pl.'s Exh. S at 2).

Sometime after May 2, 2003, Plaintiff's appeal of the convictions resulting from the February 16, 2003 stop was heard, she lost, and she was required to pay the fines that Officer Brush had imposed at that stop. (Rec. Docs. 40, ¶ 9; 50, ¶ 9; 52, Pl.'s Exh. W, ¶ 57).

Also, sometime after May 2, 2003, Plaintiff received by mail the charges brought against her by Officer Brush for the incident that took place on that date. (Rec. Docs. 40, ¶ 23; 50, ¶ 23). On June 12, 2003, Magistrate Watson Dayton dismissed some of the charges and upheld others for trial in Susquehanna County Court. (Rec. Docs. 40, ¶ 24; 50, ¶ 24).

Although Plaintiff had not originally been charged with the offense (docs. 50, ¶ 25; 52, Pl.'s Exhs. U, V), on February 27, 2004, Plaintiff pled guilty to disorderly conduct before Judge Seamans of the Court of Common Pleas for Susquehanna County as part of a plea bargain. (Rec. Doc. 40, ¶ 25; 50, ¶ 25). Accordingly, she admitted to a factual summary of the May 2, 2003 incident that was provided by a representative from the Susquehanna District Attorney's Office (docs. 40, ¶ 26; Defs.' Ex. 3 at 8-10) and was fined $350 and the costs of prosecution (docs. 40, ¶ 28; 50, ¶ 28). Thus, on April 2, 2004, an Order for Nolle Prosequi was entered dismissing the remaining charges against Plaintiff.

In light of Plaintiff's pending claims, some attention to education and training of the Montrose Police Department Officers is necessary.

On January 1, 2000, after previously receiving his Act 120 training, Bruce Korty was named Chief of Police for Montrose Borough. (Rec. Docs. 40, ¶ 35; 50, ¶ 35).

Contrary to Defendants' seemingly erroneous assertion that the Montrose Police Department had three manuals (doc. 50, ¶ 36), Plaintiff appears to correctly note that at the time Korty became Chief, Montrose Borough had one training manual consisting of two parts: The Duty Manual of the Montrose Police Department and the Discipline Code of the Montrose Police Department. (Rec. Docs. 50, ¶ 36; 52, Pl.'s Exh. T). Plaintiff also appears to accurately note that at the time of the May 2, 2003 incident, the training manual had not be updated since 1984 and contained no regulations concerning the use of a personal vehicle in a pursuit or the approach of a vehicle with a hand on the officer's weapon. (Rec. Docs. 50, ¶ 36; 41, Defs.'s Exhs. 6 at 11; 7 at 6, 11, 24). Further, Chief Korty and Officer Walker's testimony indicate that Montrose Police Department gave its Officers no other instruction on those issues. (Rec. Doc. 41, Defs.' Exhs. 6 at 11; 7 at 11).

Officer Brush completed his Act 120 training in 1995 at Lackawanna Junior College in Scranton. (Rec. Docs. 40, ¶ 29; 50, ¶ 29). Prior to joining the Montrose Police Department ("the Department"), he was employed by Police Departments in Forest City, Oakland, Susquehanna and Lansboro, Pennsylvania. (Rec. Docs. 40, ¶ 29; 50, ¶ 29). Plaintiff contends that Officer Brush was hired by the Department on January 8, 2003. (Rec. Doc. 52, Pl.'s Exh. S).

The Chief of Police for the Department at the time of the May 2, 2003 incident, Bruce Korty ("Chief Korty") testified that during the course of Officer Brush's employment, he became aware of at least one complaint lodged against Officer Brush: the Mayor received a complaint that Officer Brush was brusque during a traffic stop. (Rec. Doc. 41, Defs.' Exh. 7 at 31). However, Chief Korty testified that no action or investigation was undertaken following the complaint. (Rec. Doc. 41, Defs.' Exh. 7 at 31).

Defendants contend that through the Department, Officer Brush received training consisting of mandatory Act 120 updates; legal updates; training on firearms, first aid, CPR; and forensic statement analysis and clandestine lab courses. (Rec. Docs. 40, ¶ 30; 41, Defs.' Exh. 5 at 26). Plaintiff disputes this, relying on the testimony of Chief Korty, who stated that he neither conducted training personally nor had "anyone come in from outside Montrose to conduct training." (Rec. Doc. 41, Defs.' Exh. 7 at 7). Additional testimony by Chief Korty may reconcile these differing assertions: Chief Korty maintains that he arranged for Act 120 updates and weapons qualifications every year, ensured officers' CPR and first aid certifications were up-to-date, made available brochures on local training, and subscribed to periodicals related to changes in criminal law. (Rec. Doc. 41, Defs.' Exh. 7 at 7).

Nevertheless, Plaintiff notes that as of April 24, 2003, Officer Brush was not recertified because he had not completed the requisite training. (Rec. Doc. 52, Pl.'s Exh. S). However, Chief Korty explains this circumstance as a mix-up that was rectified shortly after the Department became aware of it. (Rec. Doc. 41, Defs.' Exh. 7 at 19-20).

Officer Walker received an Associate Degree in Criminal Justice from Lackawanna Junior College, which included Act 120 training. (Rec. Docs. 40, ¶ 31; 50, ¶ 31). Officer Walker also graduated from the U.S. Army Military Police School in Fort McClellan, Alabama. (Rec. Docs. 40, ¶ 32; 50, ¶ 32). From 1981 until 1983, Officer Walker had a part-time position for the municipal police department that covered Hallstead, Great Bend, and New Milford Boroughs; from 1983 until 1984 to 1986, he held a full-time position with the Clarks Summit Borough Police Department; and from 1986 until 1995, he was in the military. (Rec. Doc. 41, Defs.' Exh. 6 at 6-8).

The parties dispute when Officer Walker became employed by the Department. Officer Walker testified that he began work for the Department in 1992. (Rec. Doc. 41, Defs.' Exh. 6 at 8). However, Plaintiff contends that Officer Walker was hired by the Department on May 22, 2002. (Rec. Docs. 50, ¶ 33; 52, Pl.'s Exh. R). During his employ by the Department, Officer Walker's only training consisted of a ride-along and an Emergency Vehicle Operations Course, which was required because he had been out-of-state for so long. (Rec. Doc. 41, Defs.' Exh. 6 at 10-11).

Chief Korty testified that the Mayor or Borough Council may have received complaints related to Officer Walker, but could only "vaguely recall something that Officer Walker had ...


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