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Michael Tomlinson, et al v. Borough of Norristown

April 21, 2011


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


Plaintiffs Michael and Sherry Tomlinson ("Plaintiffs") commenced a civil rights claim against the Borough of Norristown (the "Borough"), Police Officer Lori Koch, and Police Officer Dan Lerman (collectively with Koch, "individual Defendants") pursuant to 42 U.S.C. § 1983. (Compl. ¶¶ 22-34, ECF No. 1.) In their original complaint, Plaintiffs assert six claims, several of which the Court has already dismissed, with prejudice. Presently before the Court is Defendants' Motion for Partial Summary Judgment. (Mot. Summ. J., ECF No. 20.)

I. Procedural History

Plaintiffs' original complaint, filed on August 13, 2009, alleges various constitutional and other violations stemming from the August 13, 2007 arrest of Mr. Tomlinson and the issuance of a summary citation to Mrs. Tomlinson.*fn1 (Compl.) Mr. Tomlinson was charged with resisting arrest, obstruction of the administration of justice, and four counts of disorderly conduct. (Mot. Summ. J. Ex. 3.) In the Montgomery County Court of Common Pleas, Judge Carpenter dismissed the resisting arrest and two of the disorderly conduct charges. (Mot. Summ. J. Ex. 4.) Plaintiff was convicted of the remaining charges. (Id.) Mrs. Tomlinson was charged with disorderly conduct and was found not guilty by a District Court Judge in Montgomery County. (Michael Tomlinson Dep. 20:15-22, Aug. 13, 2010.)

The original Complaint included six claims. (Compl. ¶¶ 22-34.) First, Plaintiffs claimed that all Defendants, "acting in concert and conspiracy," used excessive force(Count I), falsely arrested and/or imprisoned Plaintiffs (Count II), invaded Plaintiffs' privacy or cast them in a false light (Count III), and intentionally inflicted emotional distress upon Plaintiffs (Count IV). (Id.) Additionally, Plaintiffs allege that the Borough failed to adequately train or control Officers Koch and Lerman (Count V) and that those officers violated Plaintiffs' Due Process and Equal Protection rights (Count VI). (Id.)

On April 5, 2010, on motion, the Court dismissed with prejudice all claims against the Borough in Counts I, II, III, IV, and VI; all claims brought against individual Defendants acting in their official capacities; Mr. Tomlinson's false arrest and false imprisonment claims in Count II; all claims in Count III; and all punitive damages claims in Counts V and VI. (Order, ECF No. 11.)

Defendants contend that they are entitled to partial summary judgment as to all remaining claims against the Borough of Norristown and the claims for intentional infliction of emotional distress, conspiracy, violation of equal protection, violation of 42 U.S.C. § 1985 and § 1986, and violation of the Due Process Clause against Officer's Koch and Lerman. (Mot. Summ. J.) Defendants also move for summary judgment on Mrs. Tomlinson's false arrest claim. (Id.)

If Defendants' Motion is granted, the only claims remaining for trial are each Plaintiff's claims against Officers Koch and Lerman for excessive use of force. Plaintiffs do not oppose Defendants' Motion for Partial Summary Judgment.*fn2 (Pls.' Letter (on file with the Court).)

II. Factual History

The relevant facts, construed in favor of the Plaintiffs, are set forth below. Sometime during the evening of August 13, 2007, Plaintiffs, both African-American residents of Norristown, Pennsylvania, arrived at their home after attending their son's football practice. (Michael Tomlinson Dep. 7:14-8:11.) Plaintiffs stopped to purchase beer before they returned home. (Id. at 10:11-13.) Upon arriving at their home, Plaintiffs found that Mr. Tomlinson's brother, Barrington Tomlinson, and Barrington's friend, Mike McKenzie, were sitting outside of Plaintiffs' home. (Id. at 11:10-16.) After setting the beer down outside near his brother and Mike, Mr. Tomlinson entered his home to get his dog before joining Barrington and Mike outside in the backyard. (Id. at 16:12-15.) Mr. Tomlinson first noticed Officers Koch and Lerman when he returned to the yard. (Id. at 16:17-19.)

Mr. Tomlinson stated that Officer Lerman instructed him to "stay in the yard" and then to "go back in the house." (Id. at 17:13-23.) Mr. Tomlinson responded by stating that he wanted to get his beer and would comply with the officer's command after he had done so. (Id.) Before he was able to pick up the beer, Mr. Tomlinson alleges that Officer Lerman "lunge[d] up and smack[ed] [him] in [his] face." (Id.) Mr. Tomlinson alleged that Officer Lerman then grabbed him by his dreadlocks and dragged him over some boulders, toward his police car. (Id. at 19:2-4.) Mr. Tomlinson then admits to resisting the officer's attempt to place him in handcuffs. (Id. 25:5-9.) He alleges that during his resistance, Officer Lerman placed him in a "choke-hold" and "maced" him. (Id. 22:12-13.) Mr. Tomlinson stated that at this point Officer Koch assisted Officer Lerman in placing him in handcuffs and into the back of the police vehicle. (Id. at 30.)

Upon hearing the commotion outside, Mrs. Tomlinson came outside and observed the interaction. (Sherry Tomlinson Dep. 12, Aug. 13, 2010.) She alleges that when she came outside Officer Koch approached her, told her to "keep away," and grabbed her by her throat. (Id. 13:7-16.) Mrs. Tomlinson alleges that, as a result of this interaction, she had a red mark on her throat that lasted approximately seven days. (Id. at 18:3-10.) Mrs. Tomlinson was never placed in handcuffs, nor was she detained. (Id. at 22:16-20.) She received a citation for disorderly conduct and was found not guilty of the charge in district court. (Id. at 20:15-22.) She did not seek or receive any medical treatment as a result of any injuries that may have been sustained following the incident. (Id. 18:11-14.)

Mr. Tomlinson was transported to the police station, where paramedics "flushed [his] eyes." (Michael Tomlinson Dep. 35:2-11.) He was detained in a cell until his preliminary hearing the next morning, at which time he was released until trial. (Id. at 39:22-40:10.) Following a trial before Judge Carpenter of the Court of Common Pleas of Montgomery County, Mr. Tomlinson was found guilty of obstructing the administration of law or other governmental function and disorderly conduct and sentenced to a term of probation and a fine. (Id. 56:8-16.)

Mr. Tomlinson was treated by a family physician for physical injuries, including pain and tingling in his arm. (Id. 46-51.) His treatment consisted of therapeutic exercises. (Id.) He did not seek or receive any form of psychological treatment, though he does state that he was impacted emotionally in that he is "embarrassed" by the incident and "isolates" himself. (Id. at 52:13-20.)

III. Legal ...

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