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Dustin Alphanso Patrick v. Deputy Sheriff Michael Moorman

March 23, 2012

DUSTIN ALPHANSO PATRICK
v.
DEPUTY SHERIFF MICHAEL MOORMAN



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

MEMORANDUM

Plaintiff Dustin Alphanso Patrick ("Patrick") sues defendant Deputy Sheriff Michael Moorman ("Moorman"), asserting a single claim under 42 U.S.C. § 1983 of excessive force in violation of the Fourth Amendment. Patrick's suit arises out of an incident in which he robbed a bank and then fled from the scene and attempted to elude pursuing police officers. During Patrick's flight, Moorman shot Patrick with his Taser, causing Patrick to fall to the ground and sustain serious injuries.

Moorman has filed a motion for summary judgment in which he argues that (1) his actions constituted a reasonable use of force that did not violate the Fourth Amendment, and (2) he is entitled to qualified immunity. Patrick responded to this motion and Moorman replied, so the motion is now ripe for disposition. For the reasons we discuss below, we will grant Moorman's motion for summary judgment on qualified immunity grounds.

I. Factual Background

Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment 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," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011). We will thus set out the undisputed material facts in this matter, as well as the disputed material factual assertions that the parties have supported with specific citations to the record.

A. Patrick's Crime, Flight, and Apprehension

On May 8, 2009, at about ten in the morning, Patrick robbed the Wyomissing branch of VIST Bank using a demand note. Patrick ultimately pled guilty to this crime. Def.'s Stmt. of Facts ("Def.'s Stmt.") ¶¶ 1, 3; Pl.'s Resp. to Def.'s Stmt. ("Pl.'s Resp.") ¶¶ 1, 3. Patrick had smoked crack cocaine immediately before robbing the bank, and in the twenty-four hours preceding this crime he consumed heroin every six hours, cocaine every thirty minutes, and methadone. Def.'s Stmt. ¶ 2; Pl.'s Resp. ¶ 2. Following the crime, bank employees told law enforcement that Patrick did not display a weapon but merely handed over a note, Pl.'s Stmt. of Facts ("Pl.'s Stmt.") ¶ 3;

Def.'s Resp. to Pl.'s Stmt. ("Def.'s Resp.") ¶ 3, although the parties disagree as to whether this information was communicated to all responding officers. Pl.'s Stmt. ¶ 4; Def.'s Resp. ¶ 4. Between eighteen and thirty officers from several jurisdictions responded to search for Patrick, and the parties agree that these officers heard over the radio that many officers were involved in the search. Pl.'s Stmt. ¶¶ 8, 12; Def.'s Resp. ¶¶ 8, 12.

At the time Patrick robbed the bank, Moorman, a police officer in Berks County, was in a marked patrol car in Reading, Pennsylvania, along with another officer, Keith Neiswender ("Neiswender"). Def.'s Stmt. ¶ 29; Pl.'s Resp. ¶ 29. Moorman and Neiswender heard over their patrol car radio that VIST Bank had just been robbed, and that the suspect was a white male with a gray sweatshirt and a large tattoo on his neck who was traveling in a residential Wyomissing neighborhood known as Colony Park. Def.'s Stmt. ¶ 35; Pl.'s Resp. ¶ 35. The deputies decided to head to Wyomissing to assist with the search. Def.'s Stmt. ¶ 36; Pl.'s Resp. ¶ 36. While en route there, Moorman and Neiswender heard further calls over the radio stating that (1) the suspect had gone through a Subway sandwich shop in a shopping center, (2) a suspicious male had been seen lurking around cars, and (3) students at Berks Technical Institute ("BTI") had seen a person matching the suspect's description. Def.'s Stmt. ¶¶ 37-38; Pl.'s Resp. ¶¶ 37-38. The parties also agree that other officers radioed that*fn1 : (1) VIST Bank employees had followed Patrick as he left the bank, Pl.'s Stmt. ¶¶ 25-26; Def.'s Resp. ¶¶ 25-26; (2) an employee of a flower shop confronted Patrick outside the shop and "spooked" him off, Pl.'s Stmt. ¶ 31; Def.'s Resp. ¶ 31; and (3) Patrick walked by the BTI class without behaving aggressively. Pl.'s Stmt. ¶ 33; Def.'s Resp. ¶ 33.

Moorman decided to head toward BTI. Upon arriving in Wyomissing, the deputies slowly patrolled an office complex where a nurse from Berks Eye Center flagged them down, asked them if they were looking for a male wearing a gray sweatshirt, and advised them that she had seen the suspect run up a hill into a dumpster area in the Berkshire Commons parking lot. Def.'s Stmt. ¶¶ 38-43; Pl.'s Resp. ¶¶ 38-43. Moorman parked the patrol car, Neiswender transmitted the information from the nurse over the radio, and the deputies left the car to look for the suspect.

Def.'s Stmt. ¶¶ 43-44; Pl.'s Resp. ¶¶ 43-44. Around this time, two Wyomissing police officers arrived at the parking lot,*fn2 Barry Moyer ("Moyer") and an officer who has remained unidentified. Def.'s Stmt. ¶ 46; Pl.'s Resp. ¶ 46.

Moyer spoke to Moorman and Neiswender. Moyer then went up the hill to check the dumpsters in that parking lot, while Moorman went up the hill in the direction of the Berkshire Commons parking lot and Neiswender went up the hill to the right behind several buildings. Def.'s Stmt. ¶¶ 45, 47; Pl.'s Resp. ¶¶ 45, 47. Moorman first searched one set of dumpsters in the back corner of the parking lot, then crossed a strip of grass into the lot towards a second set of dumpsters. Def.'s Stmt. ¶¶ 50-51;

Pl.'s Resp. ¶¶ 50-51. While approaching these dumpsters, Moorman encountered an elderly couple who had just left a doctor's office. They told Moorman they had seen nothing, and Moorman made sure they got into their car safely before continuing toward the second set of dumpsters. Def.'s Stmt. ¶ 51; Pl.'s Resp. ¶ 51.

Moorman first made contact with Patrick near this second set of dumpsters. As Moorman searched the left side of the dumpsters, Patrick emerged from the right side. Def.'s Stmt. ¶¶ 53-54; Pl.'s Resp. ¶¶ 53-54. About six to eight feet separated Moorman and Patrick. Def.'s Stmt. ¶ 15; Pl.'s Resp. ¶ 15. Moorman recognized Patrick as the suspect from the tattoo on the right side of his neck, which measures four inches by three inches. Def.'s Stmt. ¶¶ 55-56; Pl.'s Resp. ¶¶ 55-56. Moorman did not see a weapon on Patrick, Def.'s Stmt. ¶ 58; Pl.'s Stmt. ¶ 58, but Patrick's shirt was not tucked into his pants, Def.'s Stmt. ¶ 58(b); Pl.'s Stmt. ¶ 58(b). Moorman described Patrick's clothes as "baggy" and stated that he could not see Patrick's waistband.*fn3 Def.'s Stmt. ¶ 59(a), (c) (citing Ex. C to Def.'s Stmt. at 199). Patrick cites testimony from Moorman and Neiswender suggesting that they heard no broadcast over the radio suggesting that he was armed, Pl.'s Resp. ¶ 142(a), (c) (citing Ex. R to Ex. A to Pl.'s Mem. at 260; Ex. J to Pl.'s Mem. at 26). The parties agree, however, that no witness in this matter testified that he heard a radio broadcast advising that Patrick was not armed. Def.'s Stmt. ¶ 143; Pl.'s Stmt. ¶ 143. Moorman is five feet ten inches tall and weighed 190 pounds at the time, while Patrick is six feet three inches tall and weighed 230 pounds. Def.'s Stmt. ¶¶ 61-62; Pl.'s Resp. ¶¶ 61-62. Moorman was carrying a firearm, a baton, and mace, Pl.'s Stmt. ¶ 54; Def.'s Resp. ¶ 54, presumably in addition to the Taser he later used on Patrick.

According to Moorman, he twice ordered Patrick to get on the ground. Def.'s Stmt. ¶ 65 (citing Ex. C to Def.'s Stmt. at 195-96). Patrick denies this allegation, Pl.'s Resp. ¶ 65, and at his deposition denied that he "hear[d] the officer say anything," Ex. A to Pl.'s Mem. at 66, though he also stated that he did not "recall" Moorman saying anything to him. Id. at 64. Moyer then approached Patrick and Moorman, and as he came within ten feet, Patrick fled. Pl.'s Resp. ¶ 66 (citing Ex. H to Pl.'s Mem. at 50).

Moorman gave chase and Moyer followed two or three steps behind him. Def.'s Stmt. ¶ 69; Pl.'s Resp. ¶ 69. Another officer, Douglas Goeltz ("Goeltz"), also joined the chase, Pl.'s Stmt. ¶ 69; Def.'s Resp. ¶ 69, and was similarly running behind Patrick as he ran away from all three officers.*fn4 Def.'s Stmt. ¶ 27(b) (citing Ex. E to Def.'s Stmt. at 219-20).

Goeltz testified that he radioed instructions to set up a perimeter on Berkshire Boulevard, in the direction Patrick was running, Pl.'s Resp. ¶ 138(a) (citing Ex. G to Pl.'s Mem. at 86, 122-23). Another officer whose testimony Patrick cites, Robert Pehlman, id. stated that he was "certain" officers were stationed on Berkshire Boulevard. Ex. F to Pl.'s Mem. at 33. Neither officer suggested that they had any personal knowledge*fn5 that such a perimeter was, in fact, set up, and the parties agree that none of the officers deposed in this matter was personally stationed on Berkshire Boulevard or saw any other officer stationed there. Def.'s Stmt. ¶ 138; Pl.'s Resp. ¶ 138. Though Patrick refers to testimony from Moyer suggesting that Moyer was aware that a perimeter was being established, Pl.'s Stmt. ¶ 18 (citing Ex. H to Pl.'s Mem. at 25-26), Moyer also explained that he was not aware of where this perimeter was being set up. Def.'s Resp. ¶ 18 (citing Ex. D to Def.'s Stmt. at 32). During the chase, the only police officer Moyer saw in front of him was Moorman. He did not see Goeltz. Def.'s Stmt. ¶ 97; Pl.'s Stmt. ¶ 97. Goeltz similarly did not see any officers in front of him aside from Moorman.*fn6 Def.'s Stmt. ¶ 113(c) (citing Ex. E to Def.'s Stmt. at 217). Patrick also did not see any officers in front of him as he ran.*fn7 Def.'s Stmt. ¶ 22 (citing Ex. A to Def.'s Stmt. at 70).

The frame-by-frame details of the chase are disputed. Though Moyer contends that they ran for ten to twenty seconds, Def.'s Stmt. ¶ 75 (citing Ex. D to Def.'s Stmt. at 54-55), Moorman testified that the chase lasted only a couple seconds. Pl.'s Resp. ¶ 75 (citing Ex. R to Pl.'s Mem. at 213). Patrick testified that after the chase began, he only remembered running "a few steps, which would equal out to maybe four feet, six feet. All I can tell you is I remember a couple of steps," Ex. A to Pl.'s Mem. at 65-66. Patrick's next memory is of "[c]oming to and my leg was handcuffed to the bed and there was a nurse walking around." Id. at 66. Moorman testified that he closed the gap between him and Patrick to ten yards and then to ten to twenty feet before maintaining this separation, Def.'s Stmt. ¶ 68 (citing Ex. C to Def.'s Stmt. at 213-14). Patrick suggests that Moorman and Patrick began the chase closer together, Pl.'s Resp. ¶ 67 (citing Def.'s Stmt. ¶¶ 15, 89), and that Moorman was closing the gap with Patrick. Pl.'s Resp. ¶ 68 (citing Ex. G to Pl.'s Mem. at 144, 175, 176). Patrick also contends that Moorman saw only four civilians in the vicinity before the chase and that there were no civilians in the direction in which they ran, Pl.'s Resp. ¶ 52 (citing Ex. R to Pl.'s Mem. at 363-64). In the testimony Patrick cites, however, Moorman explains that before the chase began, he saw "some people in that direction [of the later chase] going into buildings," though once the chase began "there was nobody . . . in front of us at that time." Ex. R to Pl.'s Mem. at 363. According to Moorman, as he chased Patrick he yelled three or four times for him to stop, Def.'s Stmt. ¶ 70 (citing Ex. C to Def.'s Stmt. at 215). At one point, he drew his Taser and allegedly yelled "Taser, Taser, Taser." Id. ¶ 74 (citing Ex. C to Def.'s Stmt. at 215). Patrick denies that Moorman issued any verbal warnings or commands, but for the same reasons described above. Pl.'s Resp. ¶¶ 70, 74 (citing Pl.'s Resp. ¶ 65).

Patrick ran toward Berkshire Boulevard, Def.'s Stmt. ¶ 73; Pl.'s Resp. ¶ 72, but between his position and the Boulevard was a medical office building that was open to the public at the time. Def.'s Stmt. ¶ 73; Pl.'s Resp. ¶ 73. Patrick denies that he was running toward the building, Pl.'s Resp. ¶ 73 (citing Ex. A to Pl.'s Mem. at 67), or that he had any intention of entering it. Pl.'s Stmt. ¶ 89 (citing Ex. A to Pl.'s Mem. at 164). When Patrick was about thirty yards from the office ...


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