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Kelly L. Stone v. Derek E. Felsman

November 1, 2011


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


Pending before the court is defendants' motion for partial summary judgment. (Doc. No. 29). For the reasons set forth below, the motion will be GRANTED in part and DENIED in part.


On March 1, 2008, at approximately 1:15 p.m., an anonymous caller reported that there were three black males and a female arguing inside and outside of a tan or gold colored vehicle in the area of 100 Main Street in Delaware Water Gap, Pennsylvania. Id. Trial Tr. 3:24-4:3 April 14, 2008. This call was placed to Monroe County Control Center who then relayed the call to the Pennsylvania State Police. Id. at 7:23-8:3. Based on that information, defendants Felsman and Shutkufski were dispatched to the scene. Id. at 3:21-4:5.

When defendants Felsman and Shutkufski arrived at the 100 block of Main Street, they observed a black male and a white female standing on the sidewalk outside of a car, and two black males sitting inside of a car, who appeared to be engaged in conversation. Id. at 6:25-7:16, 11:22-12:6. Consequently, the defendants approached those individuals as they believed they matched the description provided by the dispatcher. Id. at 12:9-17.

Defendant Felsman began speaking to the black male and white female who were standing on the sidewalk near the car. Id. at 12:18-13:7. While defendant Felsman was speaking with the black male and white female who were on the sidewalk, defendant Shutkufski approached the passenger side of the vehicle. Id. at 17:14-18:6. The plaintiff, Kelly Stone, was seated in the front passenger seat, and was engaged in a conversation on his cell phone. Id. at 46:9-22. As such, defendant Shutkufski knocked on the front passenger window, in a aggressive manner, in order to speak with the plaintiff. Id. at 46:24-47:4, 54:21-25. Startled, the plaintiff told defendant Shutkufski that he had not done anything wrong, and according to the defendant, the plaintiff also used some profanity. Id. at 48, 82:5-83:2. Defendant Shutkufski subsequently directed the plaintiff to get off of his cell phone, get out of the vehicle and to produce his license. Id. at 61:19-62:25. The plaintiff ultimately complied with the commands to exit the vehicle and to produce his license. Id. However, the plaintiff remained on the phone, although he did not have his phone up to his ear when he exited the vehicle. Id. at 23:21-22; 96:13-97:1.

After Stone exited the vehicle, he attempted to explain to defendant Shutkufski that he was not involved in the argument which was nothing more than two friends arguing, and that the argument had ended. Id. at 80:23-83-2. Defendant Shutkufski continued to talk to Stone in a aggressive, overtly hostile, loud voice, spiced with profanities. Id. at 80:8-87:25. As such, plaintiff continued to request that defendant Shutkufski speak to him in a respectful tone. Id. at 83:4-13. Defendant Shutkufski then ordered the plaintiff to "get the fuck off the fucking phone." Id. at 83:13-14. The plaintiff then briefly removed the phone from his ear, but then brought the phone back to his ear in order to resume his conversation. Id. at 83:15-22.

At that point, defendant Shutkufski struck the cell phone out of plaintiff's hand. Id. at 84:2-3. As a result, the phone broke when it hit the ground. Id. Plaintiff then said "did you see that, they broke my fucking phone." Id. at 84:5-7.

The plaintiff was then arrested, thrown to the ground, and knocked unconscious. Id. at 84:7-17. When plaintiff woke up, he was face down on the ground with handcuffs on. Id. at 87:5-7. He was then picked up off the ground, and, at that point, plaintiff called out to his friend, requesting for him to call his father. Id. at 87:9-16. Plaintiff also told defendant Shutkufski that what they did to him was "fucked up." Id. at 87:14-20. Defendant Shutkufski replied that he should call Al Sharpton. Id. at 87:20-21.

Plaintiff was then taken to the Swiftwater barracks where he was interrogated about drug dealers and gangs. Id. at 98:7-10. He was subsequently issued a citation for disorderly conduct. Id. at 110: 25. Plaintiff plead not guilty, and was acquitted of the disorderly conduct charge. Id. at 110:5-6.

Based on the foregoing, the plaintiff commenced this action by filing a complaint on February 27, 2010. (Doc. No. 1). Plaintiff brings claims against defendants Felsman and Shutkufski for violating his First, Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. §1983, as well as claims under 42 U.S.C. §§1981 and 1985(3). Id. In addition, the plaintiff brings claims for assault, battery, false arrest, false imprisonment and malicious prosecution under Pennsylvania state law. Id.

On September 23, 2011, the defendants filed a motion for summary judgment that was accompanied by a statement of facts and a brief in support. (Doc. No.'s 29, 30,& 31). Accordingly, on October 11, 2011, the plaintiff filed a brief inopposition that was accompanied by a statement of facts. (Doc. No.'s 32 & 33), and on October 17, 2011, the defendants filed a reply brief. (Doc. No. 34).


Summary judgment is appropriate if the "pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] 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." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).*fn3


Defendants have raised various arguments as to why they are entitled to summary judgment. The court will ...

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