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Michael Sallie and Melinda Perkins v. Electronic Filing Bryan Lynk

March 23, 2012

MICHAEL SALLIE AND MELINDA PERKINS, PLAINTIFFS,
v.
ELECTRONIC FILING BRYAN LYNK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF MIDLAND BOROUGH; BRUCE TOOCH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF MIDLAND BOROUGH; RONALD LUTTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF MIDLAND BOROUGH; GEORGE HRUBOVCAK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF MIDLAND BOROUGH; AND MIDLAND BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

OPINION

Plaintiffs Michael Sallie ("Sallie") and Melinda Perkins ("Perkins") (collectively "plaintiffs") commenced this action pursuant to 42 U.S.C. § 1983 seeking redress for violation of their rights stemming from their alleged unlawful arrests. Plaintiffs aver that defendant police officers Ronald Lutton ("Lutton"), Bruce Tooch ("Tooch"), George Hrubovcak ("Hrubovcak"), and Brian Lynk ("Lynk") (collectively "the officer defendants") violated their rights under the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Midland Borough ("the Borough"), the officer defendants' employer, also is named as a defendant and is alleged to be a moving force behind the violations due to its failure to review officer applications for employment sufficiently and/or to provide adequate police training. Presently before the court are cross motions for summary judgment. For the reasons set forth below, the defendants' motion will be granted and plaintiffs' motion will be denied.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, Athe pleadings, the discovery 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.@ Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party=s claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant=s initial burden may be met by demonstrating the lack of record evidence to support the opponent=s claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth Aspecific facts showing that there is a genuine issue for trial,@ or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the Aopponent must do more than simply show that there is some metaphysical doubt as to the material facts.@ Matsushita, 475 U.S. at 586. The non-moving party Amust present affirmative evidence in order to defeat a properly supported motion@ and cannot Asimply reassert factually unsupported allegations.@ Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent Amerely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs.@ Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party=s evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to Aturn a blind eye@ to the weight of the evidence).

The present case arises from events that occurred on Friday, May 8, 2009, outside of plaintiffs' home, then located at 339 Penn Avenue in Midland, Pennsylvania. The house is on the right side of a duplex when viewed from the street, with two flights of stairs leading to the porch. Roosevelt Kirby ("Kirby") resided on the left side of the duplex. An empty lot was next to Kirby's residence.

Kirby was having a party that evening with loud music and approximately 20 people in attendance. The music from the party was getting too loud for plaintiffs to continue watching television, so they went onto their porch, leaving their nine-year-old daughter Mikayla inside.

At about 10:30 p.m., the officer defendants were in the operations room of the police station when a 911 call came in regarding a disorderly white male in the area of 349 Penn Avenue. At that time, Lynk and Tooch were coming off duty and Lutton and Hrubovcak were coming on duty. All four officers responded to the call. Lutton and Hrubovcak went in one car with Lutton driving, and Lynk and Tooch went in another with Tooch driving.

The two police cars arrived near 339 Penn Avenue with the Tooch/Lynk car right behind the Lutton/Hrubovcak car. Each side has presented significantly divergent accounts of what happened next.

The officer defendants contend that upon their arrival, an individual known to them as Patrick McClain was on the back of Roger Singleton on the sidewalk near plaintiffs' residence. Hrubovcak observed McClain, with blood on his face, jump onto Singleton's back, put his arms around him, and choke him. The two men were on the sidewalk in front of 339 Penn Avenue, which is approximately 10 to 15 yards in front of Sallie's house. McClain was well-known to the officers as a very violent person who had a history of throwing and/or spitting blood on officers and calls from his mother regarding violent behavior in the McClain household.

Believing Singleton and McClain were fighting, Hrubovcak gave several orders to McClain to stop and get off of Singleton's back. While Lutton and Hrubovcak were attempting to get McClain off Singleton's back and arrest him, the individuals from the party who were outside Kirby's place in the lot next door began to focus on the officers' actions. Sallie, who remained on his porch, repeatedly yelled phrases at the officers such as "that's not right," "you're not right," "he's just drunk," and "he's not fighting anybody." A group of about twenty individuals then began to move closer to the officers and Sallie's porch.

The more Sallie yelled, the more the crowd started to yell at and approach Tooch and the other officers. Tooch told Sallie to "shut up, and go in [his] house." Sallie responded: "this is my house. I am not going in the house." The crowd continued to move closer to the officers.

After becoming aware of the crowd drawing closer in response to Sallie's shouting, Tooch started up the stairs to Sallie's porch to get him to stop yelling and go back in his house. Tooch believed that this measure was necessary to maintain crowd control and officer safety. Lynk followed and called for back-up over his shoulder-mounted microphone. When Sallie refused to go back inside, Tooch attempted to arrest Sallie for failure to disperse and told him to place his hands behind his back. Sallie refused. As Tooch was attempting to handcuff Sallie, Perkins came out and tried to shove Tooch out of the way. Sallie then locked his arms around Perkins and refused to let go of her. Lynch and Tooch forcibly separated the two and Perkins jumped on Tooch's back. Tooch shook her off.

Lynk then tried to handcuff Sallie. Perkins grabbed Lynk's arm. Sallie turned his back and locked his arms in front of him so he could not be handcuffed. Lynk told Sallie to stop resisting. Sallie continued to do so. Lnych then took out his taser, removed the cartridge and delivered a "drive stun" for two to three seconds in the middle of Sallie's back. Lynk was then able to handcuff Sallie.

In the meantime, Lutton and Hrubovcak were able to arrest McClain and had started to move him toward the police car for pat-down and transport. Hrubovcak had witnessed Perkin's interference with the efforts to place Sallie under arrest. He ran up on the porch and pulled Perkins off of Lynk's arm. Hrubovcak then placed Perkins under arrest and handcuffed her.

Lynk escorted Sallie to the police car for pat-down and transport. Hrubovcak took Perkins.

By this time, the crowd had moved in front of Sallie's place and other residents from across the street had come out. Approximately 30 to 40 people had gathered in the vicinity, including individuals from adjacent houses and across the street. As Lynk took Sallie toward the car, he placed a second call for assistance, this time making a high priority "all available" request. Officers from surrounding communities arrived on the scene and McClain, Sallie and Perkins were taken to the station.

Plaintiffs' version is quite different. They witnessed McClain fall on the sidewalk. Singleton helped McClain back up. McClain was having difficulty standing due to his intoxication. McClain merely was leaning on Singleton when the police arrived.

Lutton and Hrubovcak tackled McClain, taking him to the ground, and they started kicking him. Sallie's comments merely were critical of this police conduct and were delivered in a non-threatening manner. They were not directed toward or at the crowd and there was no interaction between Sallie and the crowd. Sallie did not threaten the officers, attempt to punch or strike the police, throw anything, brandish a weapon, or direct the crowd to interfere with the police. Throughout the entire incident Sallie remained on his porch.

Plaintiffs maintain that no order to "be quiet and disperse" was ever given. Tooch just went up on Sallie's porch, and Lynch and Hrubovcak followed. Sallie, seeing the officers charging up his steps, turned toward his house and put his arms around Perkins, who was in front of him. When Sallie was told he was under arrest, neither he nor Perkins offered any resistance. Sallie did hold his arms in front of himself. While being placed under arrest, Lynk tased Sallie twice, and then handcuffed him. Hrubovcak took hold of Perkins' arms, placed them behind her back and handcuffed her. At no time did either Sallie or Perkins struggle with the police. Thereafter, Lynk escorted Sallie to the police car and Hrubovcak escorted Perkins.

When Sallie and Perkins were taken from the scene, Mikayla was left inside without adult supervision. Neither Sallie nor Perkins told the officers that Mikayla was in the house. Sallie's parents lived across the street and Sallie's mother had to come over to assume supervision of Mikayla.

At the station, Sallie was charged with the following:

 resisting arrest, 18 Pa. Cons. Stat. Ann. §5104;  failure of disorderly person to disperse, 18 Pa. Cons. Stat. Ann. §5502;  disorderly conduct, 18 Pa. Cons. Stat. Ann. §5503;  obstructing the administration of law or government, 18 Pa. Cons. Stat. Ann. §5101; and  riot, 18 Pa. Cons. Stat. Ann. §5501.

Perkins was told she was being arrested for a summary offense of disorderly conduct under 18 Pa. Cons. Stat. Ann. §5503. Perkins did not receive a summary citation and was never prosecuted for the alleged offense.

Sallie's parents, who were over the age of 70, went to the station to check on Sallie and Perkins. Sallie's mother approached the police car in which Perkins was seated in the back. Sallie's father attempted to enter the station. Hrubrovcak drafted charges against them for failure of disorderly persons to disperse, obstruction of justice, and riot.

Sallie was on probation. A condition of his probation was to avoid being arrested. Sallie's arrest resulted in a detainer being filed based on an alleged probation violation and Sallie was placed in the county jail. Sallie remained in jail for 31 days.

Sallie received a preliminary hearing on the charges on July 30, 2009, before a local magistrate judge. The assistant district attorney appeared at the hearing without the police reports and other paperwork that had been generated after the May 8, 2009, incident. Officers Lynk and Tooch testified at the hearing. The magistrate judge dismissed all the charges against Sallie.

Despite being arrested and told she would be charged, the officers never filed charges against Perkins. Aside from McClain, the officers did not file charges against ...


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