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John Hrezik v. Ken A Moyer

January 19, 2012

JOHN HREZIK, PLAINTIFF
v.
KEN A MOYER, IN HIS OFFICIAL ) CAPACITY, WILLIAM HEIM, CHIEF OF POLICE ) OF THE READING POLICE DEPARTMENT,INDIVIDUALLY, AND ) IN HIS OFFICIAL CAPACITY AND THE CITY OF READING, A CITY OF ) THE THIRD CLASS, AND A MUNICIPALITY OF THE COMMONWEALTH ) OF PENNSYLVANIA, DEFENDANTS



The opinion of the court was delivered by: Opinion James Knoll Gardner, United States District Judge

This matter is before the court on Defendants' Motion for Summary Judgment filed September 20, 2011. Plaintiff John Hrezik's Response in Opposition to Defendants' Motion for Summary Judgment was filed on November 1, 2011. For the following reasons, I grant defendant's motion for summary judgment in part and deny it in part.

Specifically, I grant defendants' motion for summary judgment concerning that portion of Count I of plaintiff's Complaint alleging claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments of the United States Constitution. I deny the remainder of defendants' motion for summary judgment concerning plaintiff's claim in Count I pursuant to Section 1983 for violation of the Fourth Amendment.

In addition, I grant defendants' motion for summary judgment concerning Count II of plaintiff's Complaint and dismiss Count II which alleges claims against defendants William Heim and the City of Reading for negligent training and supervision.

Count III of plaintiff's Complaint incorporates all of the prior paragraphs of the complaint, including the introductory paragraphs and all of Counts I and II. However, it does not contain any additional or new averments or allegations. Count III does contain a prayer for relief. *fn1

Finally, because there is evidence from which a reasonable jury could conclude that the actions of Police Officer Ken A. Moyer constituted excessive force, Officer Moyer is not entitled to summary judgment or qualified immunity on plaintiff's Fourth Amendment excessive force claim.

Accordingly, the only claim remaining in this lawsuit is that portion of Count I of plaintiff's Complaint asserting a claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment by use of excessive force against defendant Ken A. Moyer, in his official capacity. *fn2

JURISDICTION

Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff brings claims under 42 U.S.C. § 1983 for violations of the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Berks County, Pennsylvania, which is located in this judicial district.

PROCEDURAL HISTORY

On August 20, 2010 the plaintiff John Hrezik filed a three-count Complaint against defendants Ken A. Moyer, individually and in his official capacity; William Heim, Chief of Police of the Reading Police Department, individually, and in his official capacity; and the City of Reading, a city of the third class, and a municipality of the Commonwealth of Pennsylvania.

Count I of plaintiff's Complaint alleges claims against defendant Moyer pursuant to 42 U.S.C. § 1983 for violations of the Fourth, Eighth and Fourteenth Amendments of the United States Constitution. Specifically, plaintiff alleges that Officer Moyer used unnecessary physical force during the arrest of plaintiff on August 21, 2008, including the use of a Taser *fn3 , and that the Taser caused pain and suffering to plaintiff.

Count II of Plaintiff's Complaint alleges a derivative § 1983 Monell *fn4 claim against Reading Police Chief Heim and the City of Reading for negligent training and supervision. Specifically, plaintiff avers that the City of Reading's procedures for training and instructing police officers on the use of Tasers is insufficient, inadequate and deficient.

Count III of plaintiff's Complaint adds only a claim for costs and damages. It does not aver any new substantive claims.

On January 10, 2011 the Answer and Affirmative Defenses of Defendants City of Reading, William Heim, and Ken Moyer was filed.

On September 20, 2011 Defendants' Motion for Summary Judgment was filed together with Defendants Brief in Support of Their Motion for Summary Judgment and the Statement of Relevant Undisputed Facts in Support of Defendants Motion for Summary Judgment. *fn5 On November 1, 2011 Plaintiff John Hrezik's Response in Opposition to Defendants' Motion for Summary Judgment, Plaintiff John Hrezik's Brief in Opposition to Defendants' Motion for Summary Judgment, and Plaintiff John Hrezik's Statement of Disputed Material Facts *fn6 were all filed.

STANDARD OF REVIEW

In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003).

Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000).

Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings, but rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).

FACTS

Based upon the pleadings, record papers, exhibits, and the parties' statement of facts, the relevant facts, viewed in the light most favorable to plaintiff, are as follows.

Prior to August 21, 2008, plaintiff lived at 2232 Raymond Avenue, Reading, Berks County, Pennsylvania, with Cindy Stump, his former girlfriend, who owned the residence. In addition, prior to August 21, 2008, Ms. Stump requested plaintiff to leave her home and move out, which plaintiff planned to do on August 22, 2008. Ms. Stump moved some items out of her home and temporarily moved in with her mother, who lived close by.

On August 21, 2008, Ms. Stump, unsatisfied with plaintiff still being in her home, and after commencing eviction proceedings with the local Magisterial District Justice, obtained a protection from abuse and eviction order against plaintiff from Berks County, Pennsylvania, Court of Common Pleas Judge Scott A. Lash in case number 2000-01367.

At approximately 10:57 o'clock a.m. that day, Captain John Stanton of the Berks County Sheriff's Department together with other members of the Berks County Sheriff's Department, arrived at 2232 Raymond Avenue to serve plaintiff with a protection from abuse and eviction order. Captain Stanton knocked on the door and asked plaintiff to come to the door several times.

The parties dispute what exactly Captain Stanton said. However, this dispute does not effect the outcome of this motion. Plaintiff contends that Captain Stanton said, "Come on out John. You're not in no trouble." Defendants allege that Captain Stanton advised plaintiff numerous times that they were there to serve a protection from abuse and eviction order and requested that he come out of the house.

Plaintiff refused to come out of the house. Plaintiff testified that he said nothing to the officers, but that more officers, including Officer Ken Moyer of the Reading Police Department showed up outside the home. Plaintiff was locked inside the home and there was a chair propped against the door. Plaintiff started to panic because there were several officers outside the home. He began calling friends to ask them what he should do.

At approximately, 11:08 o'clock a.m., after receiving a key to the front door from Ms. Stump, Captain Stanton, Officer Moyer, Officer Gregory Harwell and Deputy Frank Cataldi attempted to open the door using the key provided by Ms. Stump. However, because the door was barricaded with the chair, the officers could not gain entry. The officers then forced their way into the home and found plaintiff in the kitchen.

When the officers came into the kitchen, plaintiff had his hands raised and was in a submissive position. Plaintiff was asked numerous times to get on the floor. However, he did not comply. Instead, plaintiff kept asking "Why?", "What did I do?"

After plaintiff was asked to get on the floor twice, Officer Moyer fired the Taser at him. Officer Moyer fired the Taser for a five second burst from approximately six feet away. After plaintiff was struck with the Taser probes, he fell to the floor and was controlled by the officers.

Defendants contend that plaintiff was warned numerous times to get on the floor and was told three times by Officer Moyer that if he did not get on the floor he would use the Taser on him. Plaintiff was in the kitchen, and a kitchen is an area where knives are usually stored. However, there is no evidence that there ...


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