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Justin Kohuth v. Borough of West Chester

April 29, 2013


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


Plaintiff, Justin Kohuth, has brought suit against the West Chester Police Department, Corporal Joshua Lee of the West Chester Police Department, the Borough of West Chester and Jeremy Miles, for the serious injuries he sustained during a "sting operation" allegedly orchestrated at the direction of Corporal Lee. The complaint alleges claims under the state-created danger doctrine (Count I),Monell (Count II) and state law (Count III). On May 25, 2012, Defendants Corporal Lee, West Chester Police Department and the Borough of West Chester filed a motion for summary judgment with regard to Counts I and II of the complaint. For the reasons stated below, Defendants' motion will be granted in part and denied in part.


On December 16, 2009, Plaintiff, along with three other nursing students-Elizabeth Hofmann, Amanda Mastrippolito and Lindsay Lamonica-were celebrating the completion of their senior year at West Chester University. The students began their celebration at Hofmann's apartment, but eventually travelled to a local bar, where they spent the evening dancing and drinking until approximately 2:00 a.m. (Defs.' Stat. Facts, Doc. No. 31-3, at ¶¶ 2-4.)

As the students prepared to leave the bar, Hofmann realized that her cell phone was missing. Unable to locate the phone in the bar, the students repeatedly called Hofmann's number in order to determine who, if anyone, was in possession of the phone. (Id. at ¶¶ 4-5.) After repeated attempts, Plaintiff eventually reached a man who agreed to return the phone, and who stated that the situation was a "big misunderstanding." The man told the students to meet him at a location one-half block from Hofmann's apartment in downtown West Chester, where he promised to return the phone. (Id. at ¶¶ 6-7.) Plaintiff believed this location to be well lit, and did not have any serious concerns regarding a violent confrontation. (Pl.'s Stat. Facts, Doc. No. 33, at ¶ 8.) Although the four students waited at the first meeting place, no one appeared. (Defs.' Stat. Facts ¶ 9.)

Plaintiff then called Hofmann's phone several more times. (Id. at ¶ 10.) Eventually, a different male answered, and Plaintiff suggested that they meet at a second location, which he believed to be a well-lit area with cameras. That male also failed to appear at the designated meeting place. (Pl.'s Stat. Facts ¶¶ 12-13.)

While at the second location, the students saw a police officer parked in a nearby vehicle. Mastrippolito, who was growing very uncomfortable with the situation, walked over to the officer, Corporal Joshua Lee, and began explaining the evening's events.While the four students were talking with Lee, Hofmann was able to make contact with the person in possession of her phone. The man told Hofmann to meet him at a third location, to come alone and to bring thirty dollars in exchange for the phone. The four students all testified at deposition that they were very uncomfortable with the third meeting. (Id. at ¶¶ 14-15.)

The parties have vastly different accounts of Corporal Lee's response to the situation. Defendants point to Corporal Lee's deposition testimony, wherein he stated that he tried to convince the students to forget about recovering the phone and report it missing. Lee claimed that Hofmann and the others insisted on retrieving the phone against his advice, at which point he told the students that he would follow them to the third meeting place. Lee further testified that he told the students that they should not approach anyone, but should instead wait for him to arrive, and that he would attempt to recover the phone. (Defs.' Stat. Facts ¶¶ 16, 18.)

Plaintiff urges that his version and that of the three other students differ from Corporal Lee's account and create a factual dispute. When interviewed by police shortly after the incident, and at his deposition, Plaintiff claimed that Corporal Lee directed the students to continue on to the third meeting place with thirty dollars, and that he would follow closely behind. (Doc. No. 31-8, Ex. N; Kohuth Dep., Doc. No. 34-3, pp. 62-64.) Plaintiff also testified that Lee told Hofmann to walk on one side of the street so as to look like she was alone, and told the others to walk on the opposite side of the street. Plaintiff further testified that Lee did not tell any of them what to do once they reached the man with the phone. (Pl.'s Stat. Facts ¶ 16.)

The other three students also testified that Corporal Lee did not tell them what to do upon reaching the man with the phone, and assured them that he would arrest the man once Hofmann made contact. It is unclear from Lamonica, Hofmann and Mastrippolito's testimony who specifically suggested going through with the third meeting. However, all three testified that Corporal Lee's involvement was the deciding factor in going ahead to the third location.

(Hofmann Dep., Doc. No. 34-2, pp. 39-40; Lamonica Dep., Doc. No. 34-7, pp. 19-20; Mastrippolito Dep., Doc. No. 34-4, pp. 30-31.)

The parties agree that the following occurred next: Hofmann walked to the third meeting place on one side of the street, while Plaintiff, Lamonica and Mastrippolito followed at a distance on the opposite sidewalk. As Hofmann reached the agreed upon destination, she turned a corner, putting her outside of the others' lines of sight. An unknown person, who was later identified as Defendant, Jeremy Miles, was present at the third location and told Hofmann to follow him to his apartment. Plaintiff then rushed around the corner in order to protect Hofmann and a struggle ensued between Plaintiff and Miles. During this struggle Miles stabbed Plaintiff in the left eye with a knife.*fn2 Plaintiff and Miles fought for five to fifteen seconds before the police arrived. Miles was then tased and arrested.*fn3 (Pl.'s Stat. Facts ¶¶ 21, 23, 25; Defs.' Stat. Facts ¶ 22.)

Plaintiff claims that as a result of the stabbing, he lost his left eye and has suffered "nerve damage, fracture of the orbital bone, scar[r]ing, loss of taste and smell, loss of vision including depth perception, lacerations[ ] and tissue damage." (Compl. ¶ 47.)

Plaintiff filed his complaint on January 24, 2011, alleging: (1) a state-created danger claim under 42 U.S.C. § 1983 against Corporal Lee; (2) a Monell claim against the Borough of West Chester and the West Chester Police Department under 42 U.S.C. § 1983; and (3) assault, battery, simple assault and harassment under Pennsylvania law against Miles.*fn4 (Compl. ¶¶ 48-73.) Defendants Corporal Lee, the Borough of West Chester, and West Chester Police Department filed a motion for summary judgment on May 25, 2012 with regard to Counts I and II of the complaint.*fn5 The motion is now fully briefed and ready for disposition.


A party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact and that judgment is appropriate as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An issue is "genuine" if a reasonable jury could rule in favor of the non-moving party based on the evidence presented. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). The non-moving party cannot avert summary judgment with speculation or conclusory allegations, but rather must cite to the record. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); FED. R. CIV. P. 56(c). On a motion for summary judgment, the court considers the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 256.


A.State-Created Danger - Qualified Immunity

Defendants first argue that Corporal Lee is entitled to qualified immunity for Count I of the complaint because a reasonable police officer placed in the same situation would not have had reason to believe that his course of ...

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