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Nicholson v. Kober

July 6, 2007

MICHAEL SEAN NICHOLSON, PLAINTIFF,
v.
STEVEN KOBER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Caiazza

OPINION AND ORDER

I. OPINION

For the reasons that follow, the Defendants' Motion for Summary Judgment ( see Doc. 29) will be granted regarding the Plaintiff's municipal liability claim,*fn1 and their Motion to Dismiss ( see id. will be granted on his excessive force claim.

The Plaintiff Michael Sean Nicholson ("Mr. Nicholson") brings an excessive force claim against the Defendant Officer Steven Kober ("Officer Kober"), arising from an incident that occurred in September 2003. See generally Compl. at ¶ 79.

The incident led Mr. Nicholson to be charged with crimes under Pennsylvania statute, including two counts of aggravated assault against police officers. See generally Criminal Docket in Ct. of Comm. Pleas (filed as Doc. 31-11).*fn2 After a jury trial, the Plaintiff was convicted of these charges, see Crim. Docket, and his conviction apparently remains on appeal. See generally Def.'s Br. (Doc. 30) at 11 (contemplating dismissal of this case "until the conviction or sentence is reversed, expunged, invalidated, or nullified" on appeal or through writ of habeas corpus).

In the instant Motion, the Defendants argue among other things that the Plaintiff's excessive force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, if a favorable judgment on a § 1983 damages claim would necessarily imply the invalidity of the plaintiff's conviction, the claim must be dismissed unless the plaintiff can demonstrate that the conviction has already been invalidated. Jennings v. Fetterman, 2006 WL 2351641, *2 (3d Cir. 2006) (citation to published, binding authority omitted). Here, success on the Plaintiff's excessive force claim would necessarily imply the invalidity of his aggravated assault convictions, and his claim is barred.

Unsurprisingly, Mr. Nicholson and Officer Kober tell differing versions of the September 2003 incident. In his Complaint,*fn3 the Plaintiff alleges the following.

After some initial exchanges regarding the Plaintiff's activities and his explanations regarding the same, Officer Kober asked Mr. Nicholson if he could check him for weapons. See Compl. at ¶¶ 23-31, 35-36, 50-51. Mr. Nicholson did not respond, and shortly thereafter began to walk away and then run. Id. at ¶ 55. Officer Kober fired three shots at the Plaintiff, hitting him once in the back. Id. at ¶ 64. According to the Complaint, Mr. Nicholson never turned back toward the Officer after running, nor did he pull the gun he was carrying.

Id. at ¶ 65.

According to Officer Kober, while the Plaintiff was fleeing an attempted lawful search for weapons, Mr. Nicholson removed a loaded handgun from the waist of his pants and pointed the gun at him and another officer. See Def.'s Br. at 4 (citing supportive excerpts of Criminal Trial Tr.). Officer Kober did not wield his gun until he saw the Plaintiff reach for something at his waist, indicating Mr. Nicholson might be going for a weapon. Id.

The Defendant fired at the Plaintiff in self-defense, only after the suspect pointed his previously concealed weapon at the Officer; the entire incident lasted only a matter of seconds.

Id.

After hearing all of the evidence, along with both versions of events, the jury returned a guilty verdict against Mr. Nicholson on, among other things, two counts of aggravated assault for attempting to cause serious bodily injury to a police officer. See discussion supra .

As just seen, the jury necessarily rejected Mr. Nicholson's claim that Officer Kober shot him in the back without provocation. Indeed, the only way the fact finder logically could have concluded the Plaintiff attempted to cause serious bodily injury was to credit the Officer's assertion(s) that the Plaintiff reached for and/or pointed his weapon in the first instance. Success on the contrary claims in the Complaint would "necessarily imply the ...


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