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Edward Brown and Carol Brown v. Brian Cuscino

March 21, 2011


The opinion of the court was delivered by: Conti, District Judge



Pending before the court is a motion for summary judgment (the "Motion") (ECF No. 39) filed by defendant Brian Cuscino ("defendant" or "Cuscino") seeking judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56 against Edward Brown ("Mr. Brown") and Carol Brown ("Mrs. Brown," and together with Mr. Brown, "plaintiffs‟), with respect to all claims asserted in plaintiffs‟ amended complaint (the "Amended Complaint"). (ECF No. 14.) Defendant also asserts that plaintiff‟s claims are barred by qualified immunity. Plaintiffs dispute these assertions.

In the Amended Complaint, Mr. Brown alleges that Cuscino violated his civil rights and asserts federal and state claims: 1) federal claims pursuant to 42 U.S.C. § 1983 for unlawful arrest and use of excessive force in violation of Mr. Brown‟s rights under the Fourth Amendment to the Constitution of the United States (count VI), and 2) state claims under Pennsylvania law for assault and battery (count VII). Mrs. Brown asserts a state claim against Cuscino for loss of consortium. (Am. Compl., ECF No. 14.) Jurisdiction over Mr. Brown‟s federal question claims is predicated upon 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Supplemental jurisdiction over Mr. and Mrs. Brown‟s state law claims are predicated upon 28 U.S.C. § 1367.

For the reasons that follow, the court will grant Cuscino‟s Motion with respect to all federal question claims because there is no issue of material fact in dispute and Cuscino is entitled to judgment as a matter of law. Since Mr. Brown‟s federal law claims will be dismissed and because the remaining claims arise under Pennsylvania law, the court will decline to exercise supplemental jurisdiction over those claims. 28 U.S.C. § 1367(c)(3).

II. Background


On September 4, 2008, plaintiffs commenced a multiple-count lawsuit against several defendants.*fn1 (ECF No. 1.) On December 1, 2008, plaintiffs filed the Amended Complaint. (ECF No. 14.)*fn2 On December 5, 2008, defendants Cuscino, the City of New Castle and The New Castle Police Department ("NCPD") filed a partial motion to dismiss. (ECF No. 15.) On April 3, 2009, this court dismissed without prejudice plaintiffs‟ claims against the City of New Castle and the NCPD. On that same day, plaintiff stipulated to the same disposition with respect to claims against defendants Shenango Township, Shenango Township Police Department ("STPD"), and Cwynar. (See minute entry, Apr. 3, 2009, ECF No. 38.) On May 10, 2010 Cuscino filed the instant Motion. On June 21, 2010, plaintiffs filed a response. (ECF No. 42.) On July 24, 2010, defendant filed the parties‟ combined statement of facts (the "Combined Statement of Facts" or "Def.‟ SF" together with "Pls.‟ S.F") (ECF No. 66.)*fn3 The matter is ripe for disposition.


The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [their] favor."). Because plaintiffs are the nonmoving parties against whom summary judgment will be evaluated, the background is viewed in the light most favorable to them. See Doe v. Cnty. of Centre., Pa., 242 F.3d 437, 446 (3d Cir. 2001).

On January 24, 2007, Mr. Brown, who was seventy-three years of age at the time, drove to the Lawrence Village Plaza, in Shenango Township, Pennsylvania near the city of New Castle Pennsylvania, for an 11:30 a.m. appointment to have his eyes examined and to purchase prescription eyeglasses at the Pearle Vision ("Pearle") eyewear store. (Def.‟s SF ¶ 1, ECF No. 66.)*fn4 Rebecca Morford, O.D. ("Dr. Morford"), an optometrist at Pearle, performed an eye exam on Mr. Brown which included dilating his eyes. (Id. ¶ 2.) Dr. Morford told Mr. Brown that she needed to see him again in approximately twenty minutes after his eyes had fully dilated. (Id.) While Mr. Brown was waiting for his eyes to dilate, Pearle‟s receptionist, Erin Cline ("Cline"), told him that Pearle customarily collects a patient‟s co-pay at that time and that his co-pay was twenty-five dollars. (Id. ¶ 3.) Mr. Brown argued that his co-pay was ten dollars, at which time Cline showed him that his insurance card indicated that his co-pay was twenty-five dollars. (Id.) Mr. Brown told Cline that he would not pay until his exam was completed. Cline agreed, but informed Mr. Brown that she could not release his prescription until his co-pay was paid. Mr. Brown went to the other side of the store to look at eyeglasses. (Id.)

After Dr. Morford completed Mr. Brown‟s eye exam, Mr. Brown asked Cline to give him his prescription. (Id. ¶ 4.) Cline reminded Mr. Brown that she could not do so until he paid his co-pay and Dr. Morford stepped in to confirm Pearle‟s co-pay policy. (Id.) Pearle‟s office manager, Barb Wojtowiz ("Wojtowiz"), explained to Mr. Brown that his insurance mandates that he pay his co-pay at the time services are provided and that he should contact his insurance with any questions. (Id. ¶ 5.) Mr. Brown told Wojtowiz that he does not "talk to insurance companies" and that Pearle‟s employees "were making [him] mad." (Id.) Cline testified that Mr. Brown loudly stated, "I just want my prescription so I can get a price on glasses." (Id. ¶¶ 5, 6.)

Wojtowiz told Mr. Brown that she would show his prescription to the optician salesperson Linda Robinson ("Robinson"), so that he could get a price for glasses, to which Mr. Brown responded, "[t]hat‟s all I wanted, I have to threaten you people to get what I want." (Id. ¶¶ 6, 7.) After Robinson introduced herself to Mr. Brown, he shouted, "[w]hat are my glasses going to cost," and became upset when Robinson did not immediately tell him what his glasses would cost without his insurance. (Id. ¶¶ 7, 8.) Robinson told Mr. Brown that he could go elsewhere to get other prices if he wished. She felt threatened when he leaned forward and shouted back, "[h]ow would you like it if I spit in your face?" (Id. ¶¶ 9, 10, 11.) Robinson, Wojtowiz, and Cline each stated that staff and customers in the store became upset by Mr. Brown‟s conduct. Wojtowiz called 911 and reported a disruptive customer in the store. (Id. ¶ 12.)

Another customer in the store, Donna Wacht ("Wacht"), stated that after Mr. Brown paid his co-pay and received his prescription, she told him that she did not like hearing him speak, and Mr. Brown responded that he did not like her either. (Id. ¶ 13.) Robinson and Cline each testified that plaintiff walked toward the door and paced back and forth for a couple of minutes, "[g]laring at everyone," before he turned around and walked out of the store. (Id. ¶ 14.) According to Robinson, everyone in the store was "frightened [because] [w]e weren‟t sure what he was going to say or . . . do." (Id.)

In response to the 911 call, the Lawrence Emergency Operations Center ("LEOC") dispatched police officer Darrin Cwynar ("Cwynar") of the STPD to the Lawrence Village Plaza to investigate the complaint. (Id. ¶ 15.) Cwynar was on patrol nearby in his police cruiser. (Id.) Cwynar was informed that a male customer at Pearle was "causing a disturbance and threatening customers." When Cwynar approached Pearl, employees inside the store pointed to Mr. Brown through the glass door, indicating he was the subject of the 911 call. (Id. ¶¶ 15, 16.) Cwynar observed that the individuals inside Pearle were "visibly shaken" and when asked what was going on, Robinson pointed to Mr. Brown and said, "[t]hat‟s him, that‟s him," and that "he was irate causing a disturbance and he threatened the employees and threatened to spit in [her] face." (Id. ¶¶ 17, 18.)

Cwynar requested to speak to Mr. Brown three times before Mr. Brown responded that he had just been inside the Pearle store. (Id. ¶¶ 19, 20.) Cwynar identified himself, told Mr. Brown that he had been called for a disturbance at Pearle, and asked Mr. Brown to tell him what happened. Mr. Brown responded, "[w]ould you buy a car without knowing the price of it?" (Id. ¶ 21.) Cwynar said that he would not and advised Mr. Brown that he needed to tell him what had occurred in the Pearle store. Mr. Brown turned around, walked toward his car and opened the front driver‟s side door. (Id. ¶ 22.) Cwynar followed Mr. Brown and advised him that he needed to speak to him and that Mr. Brown was not free to leave. Mr. Brown responded, "I don‟t have to do what you say, I don‟t have to talk to you." (Id. ¶ 23.) Cwynar stood inside the open driver‟s side door while Mr. Brown was seated in the driver‟s seat. He asked Mr. Brown for identification and Mr. Brown replied in an "elevated" volume, "I don‟t have to show you anything and I am leaving." (Id. ¶¶ 24-26.) Cwynar testified that he repeatedly told Mr. Brown to give him the keys, he was part of an investigation, and he was not free to leave. (Id. ¶ 26.)

When asked by Mr. Brown‟s counsel why Cwynar did not just let him go, Cwynar testified:

MR. BROWN‟S COUNSEL: Why didn‟t you just let him go? CWYNAR: Because I felt Mr. Brown may be in danger to other people at that point. I did not know if he may come back to Pearle, he may get involved in a road rage incident. I didn‟t know. I knew that he was visibly and uncontrollably upset at the time and I did not think that it would be safe for him to leave. . . .

MR. BROWN‟S COUNSEL: What does that mean to you when you have someone that doesn‟t cooperate at that point? CWYNAR: That I can‟t let him go because I don‟t know how much more or what else may happen. He is unpredictable to me, and that‟s exactly what I thought at that point, that this guy is unpredictable, I don‟t feel safe letting him go. (Id. ¶ 27; Dep. Cwynar, Sept. 29, 2009 at 73, 110-11.)

Cwynar testified that: 1) when Mr. Brown reached for the gear shift, Cwynar grabbed Mr. Brown‟s left shoulder and "attempted to pull him toward me because I believed that he was going to put the car in gear and I was going to be struck by it;" 2) he warned Mr. Brown that he would tase him if Mr. Brown did not exit the vehicle; 3) he called for backup when Mr. Brown insisted that he would not get out of the vehicle; and 4) he pushed Mr. Brown across the bench seat of the vehicle and got into the vehicle to avoid being run over when Mr. Brown placed his hand on the gear shift for the second time, which caused Cwynar to believe that Mr. Brown was going to back up the vehicle while Cwynar was standing inside the door of the vehicle. (Id. ¶¶ 28-30.) Cwynar testified that he was on top of Mr. Brown inside the vehicle and continued to command Mr. Brown to give him the keys, get out of the car, and stop resisting. Mr. Brown responded, "I don‟t have to do anything you say, get off of me, I am not going to listen to you." (Id. ¶ 31.)

Cwynar testified that: 1) he instructed Mr. Brown he would be tased if Mr. Brown did not give Cwynar the keys and get out of the vehicle; 2) he removed his taser from his holster and placed it on Mr. Brown‟s left arm and again warned Mr. Brown that he would be tased if he did not comply; 3) he attempted to reach for the keys and Mr. Brown continued to resist by raising his leg and attempting to throw Cwynar off of him; 4) he warned Mr. Brown again that he would be tased if he did not give Cwynar the keys; and 5) when Mr. Brown did not comply, he applied a drive stun with the taser to Mr. Brown‟s left tricep. (Id. ¶ 32.)

Cwynar testified that after the taser cycled, he instructed Mr. Brown again to drop the keys and to stop resisting. Mr. Brown responded, "[y]ou think you‟re a tough guy," and he was not going to do what Cwynar told him. (Id. ¶ 33.) According to Cwynar, when he attempted to reach for the keys again, Mr. Brown moved his knee as though he was going to strike Cwynar in the groin area. Cwynar warned Mr. Brown that he would be tased again unless he stopped resisting and complied with Cwynar‟s commands. (Id.) Cwynar decided to remain on top of Mr. Brown to keep him contained until backup arrived because Mr. Brown continued to resist by attempting to kick Cwynar even after he applied the drive stun to Mr. Brown‟s tricep a second time. (Id. ¶ 34.)

Trooper William Phillips ("Phillips") of the Pennsylvania State Police was the first officer to arrive on scene in response to Cwynar‟s request for backup. (Id. ¶ 35.) When Phillips arrived, he witnessed Mr. Brown "[t]hrashing about in the car" with "his arms . . . flying around and his legs . . .kicking" "[o]ut of control violent" and not responding to Cwynar‟s commands. Cwynar "had [Mr. Brown] pinned across the front seat of the vehicle trying to subdue him." (Id.) Phillips scanned the crowd of a few people to assure that nothing else was about to happen. (Pl.‟s SF ¶ 11, ECF No. 66.)Phillipsattempted to get the keys from Mr. Brown because he was concerned Mr. Brown might accidently strike Cwynar with them or use his keys as a weapon by holding them in a closed fist with several keys sticking out between his fingers. (Pl.‟s SF ¶ 11, Def.‟s SF ¶ 36, ECF No. 66.) Phillips grabbed Mr. Brown‟s wrist. When Mr. Brown refused to given him the keys, Phillips attempted to pull Mr. Brown out of the car at the same time Cwnyar attempted to push Mr. Brown - who continued to resist - out of the vehicle from the driver‟s side. (Def.‟s SF ¶¶ 37, 38, ECF No. 66.)

The next officer to respond was Cuscino, a police officer with the NCPD. Cuscino was aware of Cwynar‟s request for backup assistance to respond to a disturbance outside the Pearle store. (Pl.‟s SF ¶ 1; Def.‟s SF ¶¶ 1, 39, ECF No. 66.) While en route, after Cuscino was authorized to respond to the request, he heard a second call from LEOC indicating that an officer was fighting with someone. (Def.‟s SF ¶ 39, ECF No. 66.) When Cuscino arrived on the scene he noticed that it was very noisy and that Cwynar and Phillips were on opposite sides of a gold colored car. (Pl.‟s SF ¶¶ 3, 5, ECF No. 66.) Cuscino saw Mr. Brown "refusing to let [the] officers handcuff him, . . . refusing to get out of the car.. . . [and] kick[ing] Officer Cwynar." (Def.‟s SF ¶ 39, ECF No. 66.) Cuscino testified as he approached the passenger side door, Phillips informed him that "they had a problem in the Pearle Vision Center and Officer Cwynar tried to arrest [Mr. Brown] and he resisted," and Cwynar confirmed that information. (Id. ¶ 41.)

Around the same time, another officer of the NCPD, Shawn Lough ("Lough"), arrived on the scene and observed Cwynar and Phillips struggling with Mr. Brown. (Id. ¶ 40.) Lough approached the driver‟s side door and pulled Mr. Brown out of the vehicle. He advised Mr. Brown to put his hands behind his back so that he could handcuff him. (Id. ¶ 42.) Lough testified he was trying to get control of Mr. Brown‟s arms, but Mr. Brown "was still fighting, struggling" and would not "let[] me get his arms." (Id.

At some point, two other sheriff‟s deputies arrived on the scene. (Id. ¶ 40.) According to Lough and Cwynar, other officers came to assist Lough and when Mr. Brown continued to struggle with them, they knocked his feet out from under him and took Mr. Brown to the ground.*fn5 (Id. ¶ 42.) While on the ground,*fn6 face down with both hands underneath him, Mr. Brown continued to resist and would not release his hands despite multiple commands. (Pl.‟s SF ¶¶ 6, 16; Def.‟s SF ¶ 43, ECF No. 66.) Cwynar and Lough each attempted to reach under Mr. Brown to grab his arms, but were unsuccessful due to Mr. Brown resistance by pulling away to avoid being handcuffed. (Pl.‟s SF ¶ 19; Def.‟s SF ¶ 43, ECF No. 66.) Cwynar did not disengage his taser from the holster of his duty belt to use at the time he was struggling to handcuff Mr. Brown. (Pl.‟s SF ¶ 7, ECF No. 66.)

Cuscino testified that anytime a person resists arrest he feels threatened and that because Mr. Brown "was still fighting us," he warned Mr. Brown several times that if he did not release his hands, he would be tased. (Pl.‟s SF ¶¶ 4, 17, Def.‟s SF ¶ 44, ECF No. 66.) When Mr. Brown did not comply, Cuscino applied a drive stun to Mr. Brown‟s left upper back at which point Mr. Brown released his hands which were placed in handcuffs. (Def.‟s SF ¶ 45, Pl.‟s SF ¶¶ 18, 22, ECF No. 66.) Cwynar testified that "[c]uffing under power" while the subject is receiving a tase, is the "most opportune time to get them under control," and that when Cuscino tased Mr. Brown, he and Lough were able to subdue Mr. Brown.*fn7 (Def.‟s SF ¶ 45, Pl.‟s SF ¶ 20, ECF No. 66.)

Lough testified that he heard Cuscino advising Mr. Brown that he would be tased -- although he did not remember Cuscino‟s exact words -- and that he considered Mr. Brown dangerous because nobody knew what he was going to do. (Def.‟s SF ¶ 43, ECF No. 66.) Lough stated that Mr. Brown continued to struggle after he was cuffed, and was lifted by two officers, one on each arm. (Pl.‟s SF ¶ 10; Def.‟s SF ¶¶ 44, 46, ECF No. 66.) Lough testified that the officers told Mr. Brown to get in the back of Cwynar‟s police cruiser, but he refused, stating, "I‟m not getting in." (Def.‟s SF ¶ 46, ECF No. 66.) Eventually, Mr. Brown got into the police cruiser on his own volition and was transported to the Shenango police station where he was held until his son came to pick him up. (Def.‟s SF ¶ 46, Pl.‟s SF ¶ 23, ECF No. 66.)

The NCPD Taser Handling Deployment Policy provides:

The taser is an additional police tool. It‟s not intended to replace verbal problem-solving skills, self-defense techniques or firearm [sic]. The taser shall be deployed only in circumstances where it is deemed reasonably necessary to control a dangerous or violent subject. The taser shall be deployed when deadly force does not appear to be justified and/or necessary in attempts to subdue the subject where other conventional tactics have been or will likely be ineffective in a situation at-hand or there is a reasonable expectation that it will be unsafe for officers to approach within contact range of the subjective [sic]. (Pl.‟s SF ¶ 26, ECF No. 66.)

On the same day, Cuscino filed a NCPD incident investigation report, stating in relevant part:

On 1/24/2007, this Officer responded to an Officer needs assistance call at Lawrence Village Plaza. Upon arrival, this Officer found Trooper Phillips of the Pennsylvania State Police and Officer Cwynar of Shenango Township Police struggling with a white male in the front seat of a gold in color sedan.

The male was refusing to exit the vehicle and still had the keys to the vehicle in his hand. Trooper Phillips told the male to get out of the vehicle on the passenger side where he was, and the male stated "no, I want to get out the other side." Officer Cwynar also advised that he had deployed a taser on the male three*fn8 times and he was still fighting him.

With the arrival of other units, the male was removed from the vehicle and placed on the ground. The male continued to fight and was told if he did not quit resisting he would be tazed [sic]. The male continued to resist, and this Officer did deploy 1[-]5 second burst from my tazer [sic] in his left upper back. This was done with the drive stun technique. At this time the male did comply and was placed into custody by Officer Cwynar. (Def.‟s Concise Statement of Undisputed Material Facts, Ex. L, ECF 41-1 at 88.)

Lough filed a supplemental summary to Cuscino‟s incident investigation report, in which he stated in relevant part:

On /1/24/2007, I responded to Shenango Police calling for help in the Lawrence Village Plaza. Upon my arrival other units from various agencies were already on scene or pulled up shortly after I did. PSP and Shenango PD Officer Cwyner [sic] were fighting with a white male inside a vehicle. The male was refusing to get out of the vehicle. Both Officers were on the passenger side of the vehicle, so I went to the drivers [sic] side of the vehicle. I pulled the male from the vehicle and stood him up by the vehicle. The male continued to struggle with numerous Officers and was then taken to the ground. While on the ground the male still continued to fight and had to be tazed. [Sic] At that point the male stopped struggling long enough to be placed in hand cuffs.

Even after being cuffed, the male refused to fully cooperate. The male would not get in the cruiser, and had to be told numerous times to get in. Finally the male was given a choice to get in on his own or be shoved in. The male said to go ahead and shove him in, but then sat in the cruiser on his own.

The male was then transported to Shenango‟s PD. Lawrence County Sheriffs [sic] ...

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