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Brendon Bondach, *Fn1 v. Joshua T. Faust

September 7, 2011

BRENDON BONDACH, *FN1
PLAINTIFF,
v.
JOSHUA T. FAUST, JORGE A. GONZALEZ, WILLIAM M. HEIM,
CITY OF READING AND JOHN DOES, 1-10, DEFENDANTS.



The opinion of the court was delivered by: Henry S. Perkin, M.J.

MEMORANDUM

Plaintiff/Counterclaim Defendant Brendon Bondach ("Mr. Bondach") alleges that Defendant Reading Police Officers Joshua T. Faust ("Officer Faust") and Jorge A. Gonzalez ("Officer Gonzalez") used excessive force against him when they arrested him on November 27, 2008. See Compl. (Doc. No. 1). Presently before the Court is Officer Faust's Motion for Partial Summary Judgment on his counterclaim for assault and battery and statement of material facts, Mr. Bondach's Response in Opposition to the Partial Summary Judgment Motion and Cross Motion for Summary Judgment as to Officer Faust's Counterclaim. For the reasons that follow, Officer Faust's Motion for Partial Summary Judgment on the counterclaim for assault and battery will be granted and Mr. Bondach's untimely cross-motion for summary judgment will be denied.

I. BACKGROUND.

On November 27, 2008, Reading Police Officers Faust and Gonzalez were dispatched for a reported domestic dispute, in which the 911 caller reported that his daughter was intoxicated and was fighting with Mr. Bondach, her boyfriend, at Mr. Bondach's residence.*fn2

During Mr. Bondach's encounter with Officers Faust and Gonzalez and other Reading Police Officers at Mr. Bondach's residence, a struggle ensued. *fn3 As a result of the struggle, Officer Faust suffered physical injuries, including cuts to his forehead and right thumb, for which he received treatment at St. Joseph Hospital in Reading, Pennsylvania. *fn4

As a result of the encounter at Mr. Bondach's home, Mr. Bondach was arrested and charged with aggravated assault, resisting arrest, harassment and simple assault. *fn5 Mr. Bondach reached a plea agreement with the Berks County District Attorney's Office, wherein he agreed to plead guilty to simple assault upon Officer Faust in exchange for dismissal of the three other charges against him. *fn6 By pleading guilty to simple assault upon Officer Faust, Mr. Bondach admitted that he: "intentionally, knowingly or recklessly cause[d] bodily injury to [Officer Faust], by causing [a] large cut on [Officer Faust's] forehead and [a] cut on [his] right thumb, in violation of section 2701(a)(1) of the PA Crimes Code." *fn7

II. PROCEDURAL HISTORY.

On May 4, 2010, Mr. Bondach filed a Complaint against Officers Faust and Gonzalez, alleging claims of excessive force, false arrest, false imprisonment, malicious prosecution, due process violations under the Fourteenth Amendment, and a derivative Monell claim against the City of Reading and Chief of Police William Heim. See Compl. (Doc. No. 1). By Stipulation approved by the Court entered on June 11, 2010, Mr. Bondach voluntarily dismissed his false arrest, false imprisonment, malicious prosecution, Fourteenth Amendment, and Monell claims. See Stip. Vol. Dismissal (Doc. No. 11). The remaining claim is excessive force against the Defendant Officers.

On July 16, 2010, Defendants filed an Answer and Affirmative Defenses to Plaintiff's Complaint, and Officer Faust filed a Counterclaim against Plaintiff for assault and battery under Pennsylvania state law based upon Mr. Bondach's guilty plea. *fn8 See Doc. No. 14. Discovery closed on July 8, 2011, and the matter is ripe for summary judgment. See Am. R. 16 Sched. Order (Doc. No. 35). Defendants admit that disputed issues of material fact regarding the level of Mr. Bondach's resistance and the amount of force used against him preclude summary judgment on his excessive force claim, and therefore Defendants are not moving for summary judgment of that claim.

On July 15, 2011, Officer Faust filed the instant Motion for Partial Summary Judgment of his assault and battery counterclaim. *fn9 The facts pertaining to Officer Faust's counterclaim against Mr. Bondach are undisputed, specifically: (1) Officer Faust sustained physical injuries during his struggle with Mr. Bondach, for which Officer Faust received medical treatment; and (2) Mr. Bondach admitted under oath that he committed an assault and battery upon Officer Faust. *fn10 Mr. Bondach's Response to the Motion was due on August 5, 2011. On August 5, 2011, Mr. Bondach's counsel sent a stipulation extending the response time to August 22, 2011. The stipulation was received in Chambers on August 16, 2011 and was granted and docketed that day. A second stipulation extending the response time to August 29, 2011 was subsequently received, granted and docketed. Mr. Bondach's response and Cross-Motion for Summary Judgment were filed on August 29, 2011, along with a Motion in Limine seeking to preclude evidence of Mr. Bondach's arrest, charges and guilty plea. The Motion in Limine will be disposed of in a separate Order from this Memorandum and Order on the Motions for Summary Judgment. Although no response has been filed to Mr. Bondach's Cross-Motion for Summary Judgment, the Court has examined the merits of that Motion and determined that it can be denied as set forth below.

III. STANDARD OF REVIEW.

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F ED. R. C IV. P. 56(a). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.

The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Celotex, 477 U.S. at 325). To establish "that a fact cannot be or is genuinely disputed," a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...


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