The opinion of the court was delivered by: Chief Judge Kane
In this action, Plaintiff Kenneth Winston Ashford alleges that Defendants*fn1 used excessive force when they arrested Ashford, causing him injuries to his face, nose, mouth, teeth, back, and leg. Before the Court is Defendants' motion for summary judgment. (Doc. No. 53.) For the reasons that follow, the motion will be denied.
The following facts are not in dispute for the purposes of summary judgment:*fn2
On March 28, 2002, Ashford and an associate went drinking and become intoxicated. SMF ¶¶ 2, 3. When Ashford entered the Red Rose Tavern through the side door, Ashford realized that the bar was empty and the lights were dimmed. SMF ¶ 5. Though he knew he was trespassing at that point, Ashford nonetheless decided to help himself to a few drinks at the Tavern, SMF ¶ 6, and took money from the register. He then sat down at one of the tables, and passed out. It is further undisputed that when he awoke, he was arrested for burglary after breaking and entering businesses with the intent to commit crimes therein. SMF ¶ 1. He later pleaded guilty to the offense. SMF ¶ 11.
Ashford alleges that in the course of his arrest, Defendants kicked him in the face and banged his head into the floor. Ashford further alleges that when he was taken into custody and placed in a holding cell, Officer Bartz tried to "push something into [Ashford's] chest." Afterward, Ashford was taken to the York County Prison where a nurse attended to Ashford's injuries. Attached to his complaint, Ashford also submits medical records indicating that he was treated for injuries to the face, but that he ultimately suffered no permanent injuries. According to a police report, which was also attached as an exhibit to his complaint, Ashford "received a cut during his arrest." (Doc. No. 1-3, at 14.)
Ashford, acting pro se, filed this action against Defendants pursuant to 42 U.S.C. § 1983 and applied to proceed in forma pauperis. (Doc. No. 1.) The Court granted Ashford's application and ordered service on Defendants. (Doc. No. 4.)
Defendants Eisenhart and Clevenger filed an answer to the complaint with affirmative defenses (Doc. No. 8), and later Defendants Bartz and Doellinger filed separate answers with affirmative defenses (Doc. Nos. 16, 39).
At some point, a relative of Ashford retained James Harris to serve as counsel for Ashford in the case. Though Harris never entered an appearance in the matter, he proceeded to act as counsel, filing several documents on Ashford's behalf and providing Ashford with documents for signature. (See, e.g., Doc. Nos. 26, 29.)
The Defendants then sought to dismiss Ashford's complaint on the grounds that Ashford's counsel failed to take an adequately active role in the litigation. (Doc. No. 43.) The Court denied the motion, holding that dismissal was not an appropriate remedy for Harris's multiple failings. (Doc. No. 51.)
Defendants then filed the instant motion for summary judgment (Doc. No. 53), a brief in support (Doc. No. 54), and a statement of material facts (Doc. No. 55). No brief in opposition was filed to the motion, and a few weeks later, Harris was disbarred from the Court. In response to the disbarrment of Harris, the Court provided Ashford with the opportunity to elect to proceed pro se in the matter or to attempt to find new counsel. (Doc. Nos. 58, 61.) Ashford elected to proceed pro se (Doc. No. 63), but then Ashford sought to stay proceedings while he attempted to locate new counsel (Doc. No. 65).
Ashford was ultimately unsuccessful in his attempts to obtain counsel to represent him, and after substantial delay, he submitted responses to Defendants' motion for summary judgment, (Doc. Nos. 79, ...