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Danny Lawrence, Jr v. Michael Netzlof and the New

September 28, 2012


The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 32 )



Currently before the Court for disposition is a Motion for Summary Judgment filed by Defendants Michael Netzlof and the New Kensington Police Department (ECF No. 32) in this civil rights action. Plaintiff instituted this lawsuit pursuant to 42 U.S.C. § 1983 on April 1, 2010, alleging a violation of his constitutional rights under the Fourth Amendment and the Eighth Amendment for "excessive force on citizens" and "medical negligence" in relation to his arrest on August 31, 2008. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343. Venue lies in this district pursuant to 28 U.S.C. § 1391(b).


At approximately 4:00 a.m. on August 31, 2008, Defendant, Michael Netzlof ("Officer Netzlof"), was performing routine patrol in his capacity as a police officer for the City of New Kensington when he observed a vehicle being operated without any headlights. (Affidavit of Michael Netzlof ("Netzlof Aff.") at ¶¶5-6, Defs.' App. Ex. B, ECF No. 35-2.) Officer Netzlof began following the vehicle and subsequently observed it travel through two stop signs without stopping. (Netzlof Aff. ¶7 & 9; Dep. of Danny Lawrence, Jr. ("Pl.'s Dep.") at 71, Defs.' App. Ex. A, ECF No. 35-1.) Officer Netzlof, who was in full police uniform and driving a marked patrol car, activated his emergency lights and attempted to stop the vehicle which was operated by the Plaintiff, Danny Lawrence, Jr. (Netzlof Aff. at ¶5, 8, & 11; Pl.'s Dep. at 45.)

Lawrence was driving to the home of his sister, Latria Giles, when Officer Netzlof began his pursuit. (Pl.'s Dep. at 41-43, 44-46.) Over the 15-hour period preceding this incident, Lawrence had been consuming alcoholic beverages including two six-packs of beer and a pint of brandy, and admitted that he was under the influence of alcohol while driving back to his sister's house. (Pl.'s Dep. at 37-39, 70.) Lawrence further admitted that he failed to stop at the two stop signs, but disputes that he did not have had his headlights on, as reported by Officer Netzlof. (Pl.'s Dep. at 70-71.)*fn2

Although Lawrence was aware that the police officer behind him was attempting to pull him over, he did not pull over. (Pl.'s Dep. at 45-46.) When asked why he did not pull over, Lawrence testified that he did not feel safe where the officer was pulling him over, and that he "just . . . don't like pulling over for police, that's all." (Pl.'s Dep. at 45-46.) Lawrence ultimately stopped the vehicle he was driving in a parking lot a few properties away from his sister's house, got out, and ran from police. (Pl.'s Dep. at 46-47.)

At the time he exited the vehicle and ran from the police, Lawrence was aware that the police were trying to stop him. (Netzlof Aff. at ¶¶11-12; Pl.'s Dep. at 47.) As he was running from the police, Lawrence recalled hearing someone behind him state, "Stop, or I'll taser you." (Pl.'s Dep. at 49.) Lawrence was not, however, tasered by the police at any time during the incident in question. (Pl.'s Dep. at 49, 62.)

Lawrence contends that he stopped running when he tripped over something or otherwise lost his footing, and fell, landing on his chest, and then laid on the ground on his stomach. (Pl.'s Dep. at 51-52; Netzlof Aff. at ¶12.) Officer Netzlof reported seeing Lawrence run into a stair rail, fall over a 4-foot high drop-off, and land on the surface below. (Netzlof Aff. at ¶12; New Kensington Police Investigation Report ("Police Report") dated 8/31/08 at 16, ECF No. 35-2 at 7.) Lawrence disputes Officer Netzlof's account as to the cause of his fall and submits that he does not recall flipping over the stair rail and landing face first in a dark back yard, because he feels that if the fall would have been hard enough to sustain the fractures to his ribs, face and wrist, he would have reinjured his neck which he broke/fractured in 1997.*fn3 (Pl.'s Resp. to Mot. of Summ. J.*fn4 at ¶29, ECF No. 48 at 3.) As Lawrence lay on the ground, temporarily incapacitated from the fall, Officer Netzlof placed him under arrest and applied handcuffs.

(Netzlof Aff. at ¶13; Pl.'s Dep. at 49-52.) Officer Netzlof then placed Lawrence into his police car and transported him to the New Kensington police station. (Netzlof Aff. at ¶17; Pl.'s Dep. at 52-55.)

While in custody at the police station, Lawrence made no complaints to New Kensington police about any pain, symptoms, or injuries. (Pl.'s Dep. at 57-58.)*fn5 At approximately 4:42 a.m., New Kensington police summoned EMS personnel to evaluate Lawrence as to any injuries he may have sustained as a result of his fall. (Netzlof Aff. ¶¶17-18; New Kensington Ambulance Service ("Ambulance Service") records, Defs.' App. Ex. C, ECF No. 35-3 at 2.) The records of the Ambulance Service indicate that EMS personnel arrived at the police station at approximately 4:45 a.m. on August 31, 2008, and treated Lawrence for minor cuts sustained in the fall. (Netzlof Aff. ¶19; Defs.' App. Ex. C, ECF No. 35-3 at 2.) The Ambulance Service's records further indicate that Lawrnece was alert, oriented, and had no loss of consciousness at the time he was examined by the EMS personnel. (Defs.' App. Ex. C, ECF No. 35-3 at 2-3.) However, Lawrence refused any further evaluation or treatment by EMS personnel or to be transported to hospital at that time. (Id. at 2.)*fn6

Lawrence remembers arriving at the New Kensington police station, but remembers nothing after that until he was woken up by the sheriff later that morning. (Pl.'s. Dep. at 55).*fn7 At that time, Lawrence was in a cell when he was awaked by the sheriff calling his name. (Pl.'s Dep. at 55-56.) When Lawrence walked out of the cell, he contends that the sheriff said to him, "They did a number on you." (Pl.'s Dep. at 56.) Lawrence understood the sheriff's remark to "mean[ ] [his] injuries [that he went to the hospital for] and how [he] looked." (Id.)

Later that same day, the sheriff arranged for Lawrence to be transported to the Westmoreland County Jail ("WCJ"). (Pl.'s Dep. at 57-58.) However, when he arrived at WCJ, jail officials would not admit him until he had been examined and treated at the hospital for the injuries he allegedly sustained earlier that day. (Id. at 57.) Shortly thereafter, Lawrence was transported to the hospital for evaluation and treatment of injuries consisting of fractured ribs, fractured facial bones, and a fractured wrist. (Pl.'s Dep. at 56-57, 66.)*fn8 Lawrence contends that he remained hospitalized for four days for treatment of these injuries. (Pl.'s Dep. at 62.)

Lawrence disputes that he sustained these injuries when he fell because his sister and brother-in-law saw him get arrested and get into the police car and he did not have those injuries. (Pl.'s Dep. at 58.) Lawrence testified that his sister and brother-in-law told him they saw him getting into the police car and that's all they saw. (Pl.'s Dep. at 59.) Lawrence also testified that it was dark at the time of the incident resulting in his arrest. (Pl.'s Dep. at 40-41.) When asked at his deposition whether he has any evidence as to how he sustained these alleged injuries, if not from his fall, Lawrence responded, "No." (Pl.'s Dep. at 59-60.) However, in his submissions in opposition to summary judgment, Lawrence explained that he thought counsel was asking him if he had any evidence with him at the deposition. (Pl.'s Br. in Supp. of Opp'n of Mot. of Summ. J. ("Pl.'s Br. in Opp'n") at ¶31, ECF No. 46 at 2; Pl.'s Supp. Resp. to Summ. J. at ¶31, ECF No. 48 at 3.) Lawrence now submits that he has evidence which consists of photos of him after the fall (currently in his sister's possession) and medical records. (Pl.'s Br. in Opp'n at ¶31, ECF No.46 at 2.) However, to date, Lawrence has failed to file such evidence with the Court.*fn9

In connection with his arrest on August 31, 2008, Lawrence was charged with various criminal offenses (Defs.' App. Ex. D, ECF No. 35-4), and pled guilty to the charges of fleeing or attempting to elude a law enforcement officer, unauthorized possession of a controlled substance, and driving with a suspended license (Def.'s App. Ex. E, ECF No. 35-5.)

Thereafter, on April 1, 2010, Lawrence filed the instant lawsuit against Officer Netzlof and the New Kensington Police Department.*fn10 Discovery began on or about May 13, 2011 and continued for more than six (6) months (ECF Nos. 23, 29), during which time Lawrence did not conduct any discovery. Discovery closed on January 6, 2012, and Defendants filed a Motion for Summary Judgment on February 24, 2012 (ECF No. 32), along with a concise statement of material facts and supporting brief and documents. However, because Plaintiff had changed his residence, he did not receive a copy of the summary judgment motion and supporting papers.

On May 2, 2012 and June 18, 2012, Lawrence filed notices of change of address (ECF Nos. 38 & 40). On June 21, 2012, the Court ordered Lawrence to file a response to the Motion for Summary Judgment no later than June 28, 2012, more than 90 days past the original due date of his response. However, Lawrence failed to file any response by the June 28, 2012 deadline. On July 5, 2012, Lawrence requested an extension of time to file a response, claiming he never received any paperwork regarding Defendants' Motion for Summary Judgment. (ECF No. 42.) The Court granted Lawrence's request for extension on July 6, 2012, allowing him until August 3, 2012 to submit his response. On August 15, 2012, Lawrence requested yet another extension of time to file a response to the summary judgment motion (ECF No. 43). On August 16, 2012, the Court granted Lawrence one final ...

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