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Kenya Miller, Individually, and As P/N/G of Troy Allen, Plaintiff v. Philadelphia Police Officer Michael O'neill

March 21, 2013

KENYA MILLER, INDIVIDUALLY, AND AS P/N/G OF TROY ALLEN, PLAINTIFF,
v.
PHILADELPHIA POLICE OFFICER MICHAEL O'NEILL, BADGE #243698 AND PHILADELPHIA POLICE OFFICER MICHAEL RAKAY AND PHILADELPHIA POLICE OFFICER LAZARDE AND PHILADELPHIA POLICE OFFICER WEBB BADGE #4062 AND PHILADELPHIA POLICE OFFICER MURRAY BADGE #6649 AND PHILADELPHIA POLICE OFFICER BLAKE BADGE #4321 AND PHILADELPHIA POLICE OFFICER ROSENBAUM BADGE #9463 AND PHILADELPHIA POLICE OFFICER DEMPSEY BADGE #1577 AND PHILADELPHIA POLICE OFFICER PONE BADGE #6978 AND PHILADELPHUA POLICE OFFICER FEENEY BADGE #3444 AND PHILADELPHIA POLICE OFFICER WELCH BADGE #3966 AND PHILADELPHIA POLICE OFFICER BEDNARZ BADGE #7736 AND PHILADELPHIA POLICE OFFICER AMMOUNE BADGE #4509 AND PHILADELPHIA POLICE OFFICER MORRING BADGE #7619 AND THE CITY OF PHILADELPHIA, DEFENDANTS.



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

MEMORANDUM

I.INTRODUCTION

In this case, plaintiff Kenya Miller -- individually, and as parent and guardian of her minor son, Troy Allen -- alleges that fourteen police officers of the City of Philadelphia and the City of Philadelphia itself violated her civil rights by using excessive force during an arrest.*fn1

Miller contends that she and her minor son sustained various injuries as a result of the arrest and that it was the policy or custom of the City to tolerate and encourage through deliberate indifference and inadequate training the unconstitutional use of excessive force by the City's police officers in making arrests. Miller's claims are based on 42 U.S.C. § 1983 and Pennsylvania state law torts. Ten defendant officers who were not involved in Miller's arrest and the City have moved for summary judgment. Miller does not oppose the granting of the motion with respect to the ten officers. The officers involved in the arrest have not moved for summary judgment. This Memorandum addresses the City's motion for summary judgment. For the reasons that follow, that motion is granted.

II.BACKGROUND*fn2

This case arises out of the arrest of Kenya Miller and her son, Troy Allen. Their arrest stems from a traffic stop that occurred earlier that night. Allen was in a car along with two siblings -- a brother and sister who are related to one of Allen's friends. (Allen Dep. at 18.) Their car was stopped by Officer Jonathan Lazarde. (Id. at 20.) During the stop, the brother ran away, and Officer Lazarde gave chase. (Id. at 22-25.) While Lazarde was pursuing the brother, the sister drove Allen home. (Id.)

Upon returning home, Allen realized that he was missing his cell phone. (Id. at 25.) Allen called his cell phone and it was answered by Officer Lazarde, who had recovered the phone and then posed as the brother, making arrangements to meet Allen at Olney Plaza to return the cell phone. (Id. at 26.) Miller accompanied her son Allen to the plaza due to the late hour. (Miller Dep. at 34.)

When Miller and Allen arrived at the plaza, they were met by Officer Lazarde, Officer Rosenbaum, Officer Dempsey, and Supervisor Sergeant Medycki. (Rosenbaum Dep. at 7-9; Dempsey Dep. at 22-24.) Officer Lazarde arrested Allen and placed him in the backseat of a patrol car. (Id. at 36, 41; Allen Dep. at 27.) After failing to receive an explanation for why her son was being arrested, Miller opened the patrol car door to ask Allen about the arrest. (Miller Dep. at 40-44.) At this point, Miller claims that Officer Lazarde struck her in the eye and then, with several other officers, beat her for approximately five minutes while she was on the ground. (Id. at 47-52; Allen Dep. at 51-53.) As Miller was being arrested, Allen opened the patrol car door and fled the scene, but he was quickly cut off by another patrol car and handcuffed by an officer. (Allen Dep. at 30, 55-58; Miller Dep. at 46-47, 54-57.) Miller claims that Allen also was beaten and kicked repeatedly on the ground by several police officers. (Allen Dep. at 55-58.) Miller and Allen were subsequently taken to Albert Einstein Medical Center for treatment of the injuries sustained during their arrests. (Miller Dep. at 58.)

A Use of Force Report was not filed with the police department in connection with these arrests. (Murray Dep. at 15.) Plaintiff did not introduce evidence or provide testimony concerning when Use of Force Reports are to be completed by police officers. Officer Murray stated at his deposition that he believed a Use of Force Report should have been completed based on Allen's injuries. (Id.) Officers Webb and Murray, who were not involved in the arrest, also stated at their depositions that Officer Lazarde and Officer Rosenbaum had reputations for using excessive force during arrests. (Webb Dep. at 11-18, Murray Dep. at 5-6.)

Miller sued fourteen police officers and the City. Eleven of these officers were not involved in the arrest and Miller has agreed not to pursue her claims against them. They are: Officers Webb, Blake, Murray, Pone, O'Neill, Ammoune, Welch, Bednarz, Feeney, Morring, and Rakay.*fn3 The remaining three defendant officers who were involved in the arrest have not moved for summary judgment. They are: Officers Lazarde, Rosenbaum, and Dempsey. All that remains at issue is the City's motion for summary judgment covering Miller's § 1983 claims.

III.LEGAL STANDARD

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant summary judgment if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for ...


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