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Rose Thomas Kennedy v. City of Philadelphia

December 7, 2010

ROSE THOMAS KENNEDY
v.
CITY OF PHILADELPHIA, ET AL.



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

Plaintiff Rose Thomas Kennedy here sues Philadelphia Police Officers Kert Wilson, William Bonner, James Mostiller, Alexander DeJesus and William Kozlowski, and Sergeants James Ferguson and Maurice Black (collectively, "defendant officers") under (a) 42 U.S.C. § 1983 for violations of the Fourth Amendment for excessive force (Count I), (b) the Fourteenth Amendment for a violation of her substantive due process rights (Count II), and (c) state law for intentional infliction of emotional distress (Count IV). She also asserts a Monell claim against the City of Philadelphia ("the City") (Count III).

Defendants have filed a motion for summary judgment and a motion to strike as untimely plaintiff's response to their motion for summary judgment. For the reasons we discuss in some detail below, we will deny defendants' motion to strike, and grant in part and deny in part defendants' motion for summary judgment.

I. Factual Background

Kennedy claims in her amended complaint that on December 28, 2006, at around 8:30 in the evening, she was at her mother's house, where she lives with her young son. Am. Compl. at ¶ 8. Kennedy's mother called the police because Kennedy's brother, who lived elsewhere, refused to leave his mother's house after she asked him to leave. Id. at ¶ 9. Once the police arrived, Kennedy's mother argued with the police because they refused to remove her son from the property. Id. at ¶ 10. Because Kennedy's mother and the police officers were "unable to resolve the situation," Kennedy called 911 emergency services and requested that a supervisor be sent to the house. Id. at ¶ 12. A supervisor did arrive at the house, and Kennedy asked him to remove the police officers. Id. at ¶ 13.

Kennedy claims that without cause or provocation one of the officers who arrived at her house -- in the amended complaint she does not specify which one -- hit her in the stomach with his night stick even though she was seven and a half weeks pregnant. Id. at ¶ 15. Shortly after she was hit, Kennedy contends that she began to experience vaginal bleeding and went to the University of Pennsylvania Hospital. Id. at ¶ 17. Sometime thereafter, Kennedy avers that she underwent a procedure to have the dead fetus removed from her womb. Id. at ¶ 18. Kennedy claims that the physical and emotional injuries she sustained were the direct result of a blow she received from the night stick of one of the officers and that these injuries may be permanent in nature. Id. at ¶¶ 18, 23-24. Kennedy contends that she has had to pay for medical expenses and that these expenses are ongoing. Id. at ¶ 25-26. Kennedy also claims to have experienced a loss of enjoyment of life, inconvenience, mental anguish and humiliation. Id. at ¶ 27.

II. Analysis

We will first address defendants' motion to strike plaintiff's response to their motion for summary judgment as untimely. In an August 4, 2010 Order, we obliged plaintiff to file her response by August 11, 2010. Plaintiff filed her response in its entirety the next day, but (according to plaintiff's response to the motion) she attempted three times to file the response on August 11 and, in fact, succeeded in filing the memorandum of law in opposition to defendants' motion for summary judgment on that day, although not all of the exhibits. Under such circumstances, there is no just reason to strike plaintiff's response, and we will deny the motion to strike.

We next address defendants' motion for summary judgment.*fn1 Defendants argue in this motion that each of plaintiff's claims must fail, in essence because she cannot identify the police officer who allegedly used force against her, and, in the case of the Monell claim against the City, because she cannot establish that the City failed to train its police officers in the proper use of force. Def. Mem. of Law in Supp. of Def.'s Mot. for Sum. J. ("Def. MSJ") at 3.

A. Count I: Excessive Force

Kennedy claims that the defendants are liable because they used excessive force against her in violation of her Fourth Amendment rights, and requests relief under § 1983. Kennedy's case is very similar to Tillio v. Montgomery County, 695 F. Supp. 190, 193 (E.D. Pa. 1988)(Pollak, J.). In Tillio, the plaintiff claimed that he had been "punched in the back" by a sheriff as the sheriff placed him in a cell in the courthouse, but at the time that defendants filed their motion for summary judgment, plaintiff had yet to determine the identity of the sheriff. Judge Pollak allowed plaintiff to conduct limited additional discovery to determine the identity of the sheriff. Like the plaintiff in Tillio, Kennedy has alleged facts of excessive and unnecessary force sufficient to support a § 1983 claim. Tillio, 695 F. Supp. at 193; see also Sambrick v. Borough of Norristown, 639 F. Supp. 1351, 1355 (E.D. Pa. 1986). And just as in Tillio, Kennedy's amended complaint fails to meet the minimal requirement of factual specificity necessary to support a viable § 1983 claim. Plaintiff describes the time, place and circumstances of getting hit in the stomach by an officer wielding a billy club, but fails to identify the officer who allegedly did it. "This omission clearly frustrates the requirement that § 1983 complaints contain, inter alia, sufficient facts to provide defendants with adequate notice to frame an answer." Tillio, 695 F. Supp. at 193.

Finally, as in Tillio, Kennedy arguably has not had sufficient opportunity to discover the identity of the officer who allegedly hit her in the stomach on the morning of December 29, 2006. We will thus deny defendants' motion for summary judgment as to Count I. We will allow Kennedy limited discovery for the purpose of identifying the officer and afford her a final opportunity to amend her complaint if the additional discovery warrants it. We will therefore order the City to make available for deposition all of the officers plaintiff wishes to depose regarding the December 28-29 events.

In addition, there may be a genuine issue of material fact as to the time that the incident occurred. Plaintiff testified at her deposition that she was assaulted between 7:00 p.m. and 11:00 p.m. on the evening of December 28, 2006, but plaintiff is apparently mistaken because other evidence suggests that the incident took place after 2:00 a.m. and not between 7:00 p.m. and 11:00 p.m.*fn2 Officer Crawford, who received a 911 call that evening from Kennedy's mother's house and responded to it, testified that he received the call at 2:03 a.m. on the morning of December 29, 2006, and the next minute arrived at Kennedy's mother's house where he found ...


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