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Wilson v. Dewees

United States District Court, E.D. Pennsylvania

October 9, 2013

KEVIN WILSON, ET AL.
v.
JOSHUA DEWEES, ET AL

Page 450

For KEVIN WILSON, Plaintiff: HARRY J. OXMAN, LEAD ATTORNEY, OXMAN, GOODSTADT, KREVITZ & KURITZ, PHILADELPHIA, PA; JOSEPH S. OXMAN, OXMAN GOODSTADT KURITZ, PHILADELPHIA, PA.

For OFFICER JOSHUA DEWEES, BADGE #242, OFFICER DAVID BROCKWAY, Defendants: ROBERT P. DIDOMENICIS, LEAD ATTORNEY, HOLSTEN & ASSOCIATES, MEDIA, PA.

OPINION

Page 451

R. BARCLAY SURRICK, J.

MEMORANDUM

Presently before the Court is the Motion for Summary Judgment of Defendant, Officer David Brockway, and Motion for Partial Summary Judgment of Defendant, Officer Joshua Dewees. (ECF No. 33.) For the following reasons, the Motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs Kevin Wilson and Julius Bradley brought this lawsuit against the City of Chester, the City of Chester Housing Authority (" CCHA" ), and individual police officers Joshua Dewees, David Brockway, and Edward Corangi. The claims of Julius Bradley were dismissed after a hearing, by Order dated June 21, 2013. ( See ECF No. 24.). [1] Plaintiff Wilson asserts claims for the use of excessive force under the Fourth Amendment, false arrest and false imprisonment under 42 U.S.C. § 1983, assault and battery, malicious prosecution under state law and under § 1983, and intentional infliction of emotional distress. (Compl., ECF No. 1; Court's Mem. Dismiss, ECF No. 29; Court's Order Dismiss, ECF No. 30.) The claims arise out of Plaintiff's arrest and

Page 452

prosecution by Defendants, Officers Dewees and Brockway, tat occurred on October 9, 2009.

A. Procedural Background

On August 5, 2010, Plaintiff filed a Complaint asserting seven causes of action under the Fourth and Fourteenth Amendments, Pennsylvania state law, and § 1983. The parties agreed to the dismissal of many of the claims. ( See Court's Mem. Dismiss.) On July 8, 2013, the Court entered a Memorandum and Order granting in part and denying in part, Defendants' motion to dismiss. ( Id. ; Court's Order Dismiss.) As a result of the parties' agreements to dismiss, and the Court's July 8 ruling, the following claims survived the motion to dismiss stage: (1) excessive force under the Fourth Amendment; (2) false arrest and false imprisonment under § 1983; (3) assault and battery; (4) malicious prosecution under state law and § 1983; and (5) intentional infliction of emotional distress. (Court's Mem. Dismiss 8-9.) Plaintiff asserts all of these claims against both Officer Dewees and Officer Brockway. ( Id. )

On August 9, 2013, Defendants filed the instant Motion for Summary Judgment of Defendant, Officer David Brockway, and Motion for Partial Summary Judgment of Defendant, Officer Joshua Dewees. (Defs.' Mot., ECF No. 33.) [2] On August 29, 2013, Plaintiff filed a Response in opposition to Defendant's Motion. (Pl.'s Resp., ECF No. 35.) [3] On September 6, 2013, Defendants filed a Reply in further support of their Motion. (Defs.' Reply, ECF No. 40.) Trial is scheduled to begin on October 15, 2013.

B. Factual Background[4]

On the evening of October 9, 2009, Wilson left a dance at the Leake Recreation Center located at Seventh and Yarnall Streets in the City of Chester. (Wilson Dep. 9-10, Defs.' Mot. Ex. A.) The dance let out at around 11:00 p.m. and approximately 100 to 200 people left at the same time. ( Id. at 10.) Plaintiff observed no fights among the people as they exited the dance, but stated that people were " hyper" and still talking and dancing. ( Id. at 11.) Plaintiff stated that he had had two beers that evening. ( Id. at 10.) After leaving the dance, Plaintiff was with a group of approximately 15 to 20 friends. ( Id. at 17.) Plaintiff and his friends began walking away from the Leake Center on Yarnall Street towards Ninth Street. ( Id. at 12.) As Plaintiff was approaching Ninth Street, he noticed two police cars driving down Yarnall Street towards them. ( Id. at 12, 14-15.) The officers in one of the police cars began speaking with Plaintiff's cousin, Gary. ( Id. at 15.) Plaintiff kept walking down Yarnall Street while his cousin was talking to the officers. ( Id. at 16.) When Plaintiff approached the intersection of Tenth and Yarnall Streets, he was suddenly tackled from behind by Officer Dewees.

Page 453

( Id. at 16, 18.) Plaintiff was not wearing a shirt when he was tackled because it was hot at the dance. ( Id. at 16.) At the time that Plaintiff was tackled, another police vehicle approached and Plaintiff and Officer Dewees " bounced off " of the approaching police vehicle. ( Id. at 18.) Two police officers exited the vehicle and each held Plaintiff by one of his arms while Officer Dewees struck Plaintiff repeatedly on his head and across his face with a flashlight. ( Id. at 18, 21.) Plaintiff testified that he was struck with the flashlight at least ten times. ( Id. at 23.) [5] Plaintiff tried to yell out in an effort to let the officers know that he was giving up. ( Id. at 18-19.) The officers picked Plaintiff up off of the ground from his knees and struck him again two more times across the face with the flashlight. ( Id. at 19.) Plaintiff recalls that one of the police officers that held his arms was Officer Corangi. ( Id. at 20.) Plaintiff does not recall the name of the other police officer. ( Id. ) [6]

Plaintiff was handcuffed while on the ground by Officer Dewees. (Wilson Dep. 25.) Plaintiff was bleeding. ( Id. ) Officer Dewees picked Plaintiff up off the ground and placed him face down on the trunk of Officer Corangi's police vehicle. ( Id. at 25.) When Plaintiff bled on the vehicle, Officer Corangi placed Plaintiff's white t-shirt in his hand-cuffed hands and demanded that he wipe the blood off of his vehicle. ( Id. at 26-27, 30.) Plaintiff was then placed in another police vehicle and taken to the police station. ( Id. at 36-37.) Plaintiff does not recall the name of the police officer that drove him to the station. ( Id. at 37.) Plaintiff was taken to the station with at least three other individuals. [7]

Page 454

At the station, Plaintiff was fingerprinted and placed in a holding cell. ( Id. at 41.) Plaintiff was not given a breathalyzer at the station. ( Id. ) Plaintiff requested but was not provided any medical attention while he was at the station. ( Id. at 42.) Bail was set at $50,000. Plaintiff was released after his mother posted bail at 8:00 p.m. the following evening. ( Id. at 43.) Plaintiff was in custody for approximately 22 hours. ( Id. at 45.)

After Plaintiff arrived home with his mother and his girlfriend, he blacked out and an ambulance came to revive him and take him to the hospital. ( Id. at 53-54.) Plaintiff was diagnosed as having a concussion. ( Id. at 55.) As a result of the incident, Plaintiff suffered from gashes and lacerations on his face, brush burns on his shoulder, and a swollen and bruised head. ( Id. at 68-72.) Plaintiff testified that, following this incident, he saw a psychologist for approximately three to four months for trauma. ( Id. at 63, 65-66.) He stated that he was, and continues to be, afraid of flashlights and of people coming close to him. ( Id. at 66.) Plaintiff still has headaches as a result of the incident. ( Id. ) Plaintiff testified that Officer Dewees was not " ever touched" by him and was not injured as a result of the incident. ( Id. at 40.) [8] Plaintiff was nineteen years old at the time of the incident. (Wilson Dep. 8.)

Officer Dewees prepared the Incident Investigation Report and the Criminal Complaint. The Criminal Complaint charged Plaintiff with disorderly conduct, harassment, resisting arrest, failure of disorderly persons to disperse upon official order, aggravated assault, simple assault, and recklessly endangering another person. (Crim. Compl., Defs.' Mot. Ex. F; see also Dewees Dep. 53.) The Affidavit of Probable Cause states that when the Officers arrived at the scene of the incident, there was a group at the corner of Ninth and Yarnall Streets that " were standing in the roadway ripping their shirts off swinging them around and using foul language in attempts to make the crowd more rowdy." (Crim. Compl. 6.) The Affidavit of Probable Cause also states that Plaintiff was chased, resisted arrest, fought the attempts of the officers to take him to the ground, and that Officer Dewees was struck in the face with Plaintiff's elbow during the struggle. ( Id. ) The Affidavit states that Officers Brockway and Corangi came to Officer Dewees's aid in restraining Plaintiff during the incident. ( Id. ) The Affidavit does not mention the use of a flashlight or that Plaintiff had appeared intoxicated. ( Id. ) On April 4, 2010, Chester Magisterial District Judge Dawn Vann dismissed all charges against Plaintiff. (Compl. ¶ ¶ 20, 27.)

II. LEGAL STANDARD

A party is entitled to summary judgment " if the movant shows that there is no genuine dispute as ...


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