The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff James D. Domitrovich ("Plaintiff" or "Domitrovich") commenced this civil rights action seeking redress for alleged violations of his constitutional rights in conjunction with an arrest and the criminal proceeding that followed. Presenting before the court are Defendant Ronald L. Hogue, Jr.'s ("Hogue") motion for summary judgment and the Borough of Monaca's ("Monaca") second motion to dismiss. For the reasons set forth below, Hogue's motion will be granted in part and denied in part and Monaca's motion will be granted.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. Hogue has been employed as a patrolman with Monaca since 2001. On the evening of June 6, 2007, Hogue and fellow Officer Donald Couch ("Couch") were asked to investigate a complaint from the Croatian Club involving guests at a nearby residence.
Upon arrival, the officers found people at the residence having a cookout and consuming alcohol. Plaintiff, James D. Domitrovich ("Domitrovich"), was attending the cookout and witnessed the owner of the residence, Denny Summerville, inform the officers that the guests were not bothering anyone. After finding no on going disturbance the officers started to leave the Summerville residence. Danny Hall, an intoxicated guest, then made several rude remarks towards Hogue and Couch. The officers left the residence but decided to maintain observation from a distance.
From this point forward, Domitrovich and Hogue have two very different accounts of what transpired. Hogue contends that he and Couch heard a motor revving and then observed an orange Camaro leaving the property at a high rate of speed and hitting a garbage can. Hogue and Couch pursued the Camaro in separate cars in order to issue a traffic citation. Hogue's pursuit of the Camaro continued until it pulled up in front of a residence on Pacific Avenue, at which time Domitrovich exited the vehicle and headed towards his home. Hogue exited his vehicle and instructed Domitrovich to get back into his car multiple times but Domitrovich did not comply and kept walking towards the home.
After Domitrovich's refusal to acknowledge Hogue's comments, Hogue approached Domitrovich and told him to "[p]ut your hands behind your back." Domitrovich kept walking towards the home. Hogue grabbed Domitrovich by his right wrist and Domitrovich turned around to face him. Hogue told Domitrovich he was under arrest for suspicion of driving under the influence. Domitrovich responded: "I'm not taking no (expletive) test." Hogue again told Domitrovich to put his hands behind his back and Domitrovich kept asking why he was being arrested. Domitrovich kept moving his arm away from Hogue so he could not handcuff him. Domitrovich eventually broke free of Hogue's grasp and began to walk towards the home. Hogue again grabbed Domitrovich in an attempt to place him under arrest and Domitrovich punched Hogue in the face. Hogue grabbed his telescopic baton and instructed Domitrovich to get to the ground. Domitrovich failed to comply. Hogue struck Domitrovich with his baton five to eight times. After these strikes proved ineffective in bringing Domitrovich to the ground, Hogue began to wrestle him to the ground and Domitrovich "began to fight back." Domitrovich was laying on his stomach and Hogue was on top of him. Hogue told Domitrovich again to put his hands behind his back and Domitrovich replied: "[g]et your F-ing knee out of my F-ing head."
By this time Couch arrived and detained Domitrovich's girlfriend, Cynthia McPherson, who had exited the house. Couch went over to help Hogue who was still trying to effectuate the arrest. Both Couch and Hogue gave multiple commands to Domitrovich to quit resisting and take his hands out from underneath his chest. Domitrovich did not respond. Hogue became concerned about his own safety because Domitrovich's hands were out of sight and Hogue did not know whether Domitrovich had a weapon. At this time Hogue punched Domitrovich twice in the ribs in an attempt to get Domitrovich to release his hands. When this did not work, Hogue informed Domitrovich that if he did not bring his hands out from underneath his chest, he would be pepper sprayed. Domitrovich did not comply. Hogue pepper sprayed him. Domitrovich released his hands and Hogue handcuffed him.
Domitrovich was placed in the back of a police car, where he kicked out the rear side window and damaged the door frame. Domitrovich was then transported to the Borough police station and processed.
Domitrovich contends he did not "tear out" of the Summerville residence at a high rate of speed or hit any garbage cans. He never noticed Hogue in pursuit of him and by the time Hogue appeared, he was already on his property so Hogue could not have seen him exit his vehicle. Hogue did not instruct him to return to his vehicle. He did not ignore Hogue's requests. Instead, he followed all of Hogue's instructions and did not refuse alcohol testing, as he wanted to take a blood test.
Domitrovich contends that he had parked his vehicle and began to traverse toward his residence when Hogue yelled "your under arrest for suspicion of DUI," to which Domitrovich responded, "I"ll take a blood alcohol test." Hogue, angered by Domitrovich's suggestion to go take an alcohol test, told Domitrovich to put his hands behind his back, and Domitrovich immediately complied. Hogue then grabbed both of Domitrovich's hands, led him to the police car and slammed his head off the trunk. Hogue then punched Domitrovich in the temple with a closed fist and yelled "quit resisting." Domitrovich responded, "I'm not resisting" and Hogue kicked out his left leg and began to assault Domitrovich with a baton. Afer this assault, Hogue cuffed Domitrovich and put him into the back of the police car.
Hogue called to have Domitrovich's vehicle towed. Domitrovich said "let someone move it" from inside the patrol car. Hogue opened the door and pepper sprayed Domitrovich and struck him several times. Domitrovich, stunned and in pain, kicked back at Hogue who closed the car door and as a result the rear window was smashed out.
Domitrovich further contends he was transported to the Borough of Monaca police station where Hogue forcefully removed him from the police car and threw him to the ground, causing lacerations to both his knees. Once inside the station, Hogue slammed Domitrovich's head off the counter and punched him in the head three times with a closed fist.
The next day Hogue prepared and filed a criminal complaint and affidavit of probable cause in the Court of Common Please of Beaver County charging Domitrovich with the crimes of aggravated assault, disorderly conduct, criminal mischief - tampering with property, resisting arrest, driving under the influence ("DUI"), and public drunkeness. On July 10, 2007, Domitrovich entered into an agreement to plead nolo contendere to resisting arrest and a reduced charge of simple assault in exchange for the Commonwealth's agreement to nolle pros the remaining charges.
On December 14, 2007, Domitrovich appeared for an oral plea colloquy before the Honorable Richard Mancini of the Court of Common Please of Beaver County. At the colloquy Judge Mancini explained that by pleading nolo contendere to simple assault and resisting arrest, Domitrovich was admitting the facts as presented by the Commonwealth. Domitrovich stated that he understood the ramifications of his plea. The assistant district attorney then read into the record those facts that the Commonwealth would have sought to prove at trial. The proffer indicated Domitrovich "began to physically assault [Hogue] by striking him with a closed fist about the face and torso areas and that Officer Hogue did in fact use chemical spray in attempting to place [Domitrovich] under control as well as impact weapons and that those facts are sufficient to support the charges of resisting arrest and simple assault." Following the reading of the facts ...