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Dull v. Conway

October 19, 2009


The opinion of the court was delivered by: Judge Conner


Donna Dull ("Donna") brings this claim pursuant to 42 U.S.C. § 1983, asserting that law enforcement officers used excessive force against her in violation of her Fourth Amendment rights. Presently before the court is defendants' joint motion in limine (Doc. 107). The parties have briefed the issues and the motion is now ripe for disposition.

I. Factual Background and Procedural History

This case originates with certain indiscreet photographs that plaintiff Donna Dull ("Donna") took of her four-year-old granddaughter, H.D., the daughter of Holly Dull ("Holly"). (Doc. 72 ¶ 4; Doc. 82 ¶ 4.) Donna had taken the photographs while undressing H.D. for a bath, and they depicted H.D. in ten nude poses. (Doc. 74, Ex. 15; Doc. 83, Ex. A at 21-22.) The record contains no evidence that Donna took the photographs with predatory intent; in fact, it contains evidence to the contrary.

On March 13, 2005, Donna left the film containing the suspect photos at a Wal-Mart store located in the West Manchester Mall in York, Pennsylvania, to be developed. (Doc. 72 ¶ 24; Doc. 82 ¶ 24.) Donna and Holly returned to the mall the following day, and Donna retrieved her prints while Holly went to a fast-food restaurant for lunch. (Doc. 83, Ex. B at 33-34.) A Wal-Mart employee informed Donna that the photo center staff had questioned the propriety of the photographs and had turned them over to defendant West Manchester Township Police Department. (Doc. 72 ¶ 25; Doc. 82 ¶ 25; Doc. 83, Ex. A at 41-42.) A Wal-Mart staff member then contacted the police, and defendants West Manchester Township Police Officer Sean Conway ("Conway") and York City Police Sergeant Nicholas Figge ("Figge") were dispatched to the mall. (Doc. 74, Ex. 3 at 15; Doc. 74, Ex. 8 at 8.) These officers ultimately took Donna into custody after she emerged from the mall and entered her vehicle. (Doc. 83, Ex. A at 60-71.)

When Donna stepped out of her vehicle as Conway instructed, (Doc. 83, Ex. A at 14-15, 49, 59-60; Doc. 72 ¶¶ 31-32; Doc. 82 ¶¶ 31-32), Conway rotated her body so that she was facing a sport utility vehicle parked in the next space, (Doc. 83, Ex. A at 15). From this position, he grasped her wrists and prepared to handcuff her. (Id. at 15, 65-67.) She testified that this maneuver caused her to experience considerable pain in one of her fingers, which was swollen due to arthritis. (Id. at 15, 68.) After Conway restrained her, she was slammed with great force into the side of the SUV, causing further injury. (Id. at 15, 71, 80, 229.) Donna could not identify the officer who forced her against the SUV because the conduct occurred with the officers at her back. (Doc. 83, Ex. A at 75-76, 80.)

Holly exited the mall after Donna was placed in the rear of Conway's police cruiser. (Doc. 72 ¶¶ 61-62; Doc. 74, Ex. 4 at 17; Doc. 82 ¶¶ 61-62.) West Manchester Township Police Sergeant Peter Haines ("Haines") had recently arrived on the scene, and Conway and Figge were briefing him on the situation when Holly approached the officers. (Doc. 72 ¶¶ 61-62; Doc. 74, Ex. 4 at 17; Doc. 82 ¶¶ 61-62.) Haines contacted West Manchester Township Police Detective David Bixler ("Bixler"), who wanted Haines to bring Holly "back to the station to be interviewed," (Doc. 74, Ex. 5 at 8-9), but did not intend for him to arrest her. Due to a miscommunication between them, however, Haines did arrest Holly. (Doc. 74, Ex. 4 at 18; Doc. 83, Ex. B at 128.)

Donna and Holly were eventually transported to the West Manchester Township police station, where someone purportedly informed Donna that a York City officer was responsible for shoving her into the SUV. (Doc. 83, Ex. A at 76.) Donna cannot remember who made this statement. (Id.) Donna and Holly were later released. Subsequently, Donna scheduled an appointment with defendant West Manchester Township Police Officer Steven Crider ("Crider") to file a citizen's complaint regarding the force used to apprehend her. (Doc. 74, Ex. 6 at 9; Doc. 83, Ex. A at 84-85.) Crider was otherwise uninvolved in her arrest. (Doc. 72 ¶ 47; Doc. 82 ¶ 47.) West Manchester police filed a criminal complaint against Donna on June 17, 2005 charging her with sexual abuse of children. (Doc. 74, Ex. 16.) The district attorney dismissed all charges on June 21, 2006 due to a lack of evidence establishing criminal intent. (Doc. 74, Ex. 14 ¶¶ 6, 12.)

Donna and Holly filed the instant suit on February 16, 2007, alleging violations of their constitutional rights under § 1983 and advancing various tort claims under state law. On March 31, 2009, the court granted summary judgment in defendants' favor with respect to Holly's claims for unlawful arrest and unlawful imprisonment and some of Donna's claims. (See Doc. 90.) Donna's claim that Conway and Figge used excessive force in arresting her remains pending. Trial is scheduled to commence on November 2, 2009.

II. Discussion

Defendants' joint motion in limine (Doc. 107) seeks to exclude the following:

(A) evidence that an unknown York City police officer allegedly caused Donna's injuries, (B) testimony of Holly Dull ("Holly"), (C) evidence regarding the civil claims brought by Holly, (D) evidence related to Steven Crider's employment termination or the criminal charges against him, and (E) evidence that the criminal charges against Donna were ultimately dismissed. The court will address these subjects seriatim.

A. Evidence that an Unknown York City Police Officer Allegedly Caused Donna Dull's Injuries

Defendants argue that the court should preclude any evidence that an unknown individual told plaintiff that a York City police officer caused or contributed to her injuries. Defendants contend that such evidence is inadmissible hearsay. Hearsay is any oral or written "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FED. R. EVID. 801(c). Unless it falls within one of Federal Rules' exceptions, hearsay testimony is not admissible evidence. See FED. R. EVID. 802. However, "a statement is not hearsay if [t]he statement is offered against a party and is... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship...." FED. R. EVID. 801(d)(2)(D). Plaintiff ...

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