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Zorbah v. School District of City of Philadelphia

United States District Court, Eastern District of Pennsylvania

February 10, 2014




Now before me is a motion for summary judgment by defendants the School District of Philadelphia and School District Police Officer Adrienne Holmes, plaintiff Theresa Zorbah’s response and defendants’ reply. Plaintiff brings a Fourth Amendment excessive force claim and state law claims of assault and battery allegedly arising out of defendant Holmes’s actions leading to plaintiff’s arrest and detention on or about June 4, 2010.[1] For the reasons below, I will deny defendants’ motion.


On or about June 4, 2010, plaintiff Theresa Zorbah, then a student at Fels High School arrived at summer school at approximately 8:00 a.m. Dkt. No. 11-2 at 13:6-7, 28:12-14. Plaintiff was pregnant at the time. Id. at 26:21-22. Plaintiff entered her first period class and asked for permission to go to the library to speak to a representative from City Year in order to ask questions about applying to the program. Id. at 31:20-32:6. Her substitute teacher gave her permission to leave the classroom but could not give her a pass. Id. at 38:1-2. Plaintiff walked to and entered the library. Id. at 32:10-12. Plaintiff recalls that the librarian was absent when she arrived and school police officer Adrienne Holmes had been asked to “take over” and was “covering” for the librarian until her return. See id. at 79:16-80:3. Plaintiff claims that Holmes approached her while she was pleading to go meet a City Year representative but Holmes refused her appeals multiple times.[2] She claims that Holmes then grabbed her by her jacket and told her to turn around to leave the library.[3] Id. at 39:13-16. Plaintiff continued to insist to Holmes that she needed to talk to City Year. See id. at 39:16-17. At this point, Holmes started to turn plaintiff around by her jacket to face the door in order to leave the library while plaintiff claims she told Holmes to “let go” and “stop.” Id. at 46:1-9. Plaintiff claims that Holmes then pushed her until they were in a corner near the library door.[4] Id. at 39:17-23. Plaintiff claims that while they were against the wall Holmes continued to push her until she made herself “stiff.” Id. at 52: 8-16. She testified that when Holmes “realized that she couldn’t push [her] no more she grabbed [her] by [her] hair” and then bent her over her stomach. Id. at 40:7-41:11. Plaintiff claims she grabbed defendant’s jacket “by her neck” to pull herself up, held both of Holmes’s hands and struggled with her. Id. at 41:6-9; 47:16-21; 60:2-18. Plaintiff also claims that her friend, a bystander, requested that Holmes “let her go, leave her” because she was pregnant, but Holmes responded that she didn’t give a f--. Id. at 40:16-23. Plaintiff testified that Holmes asked a nearby officer to “help get [her]” but that officer refused to touch her because she was pregnant. Id. at 40:12-17. Plaintiff testified that she never kicked Holmes. Id. at 47:13-19. Plaintiff’s testimony is generally corroborated by another student who witnessed the incident.[5] See Dkt. No. 12-5.

In contrast, Holmes testified that plaintiff of her own volition “had backed up against the wall” prior to rushing defendant and “pushing, kicking” at the same time as she forcefully attempted to “get her way in” the library. Dkt. No. 12-2 at 27:3-15; 38:20-21. Holmes claims that she “probably did grab [plaintiff] by the head because she was pregnant” because “there was no where else to grab her.” Id. at 32:21-23. Holmes testified that she had her hand on plaintiff’s hair for approximately 30 seconds during the time she claimed plaintiff attempted to push her way into the library. Id. at 36:10-19. She testified that she never attempted to take plaintiff to the ground or try to bend her over. Id. at 36:20-24. She contends that she attempted to prevent plaintiff from entering the library because she was given instructions by the librarian not to allow any students inside. Id. at 24:10-12. She claims that she suffered visible injuries to her leg from plaintiff’s kicking but did not file any reports. Id. at 42:1-9.

One of the additional school police officers handcuffed plaintiff and she was escorted to another room. See id. at 53:16-24; 55:2-5. The Philadelphia police were called to the high school and plaintiff was arrested and taken to the police station. Id. at 55:12-20; 62:12-63:9. Thereafter plaintiff was charged with aggravated assault, simple assault and recklessly endangering another person. Dkt. No. 1 ¶ 15. She spent the night at the police station and returned home the following morning on June 5, 2010. Dkt. No. 11-2 at 68:11-14. The next day, plaintiff went to the Aria Health Frankford Campus emergency room, was examined, told everything was fine, given Tylenol and then discharged. Id. at 71:12-72:6. The rest of her pregnancy progressed well and her baby was delivered “normally” on September 19, 2010. Id. at 72:18-73:3. On or about December 8, 2010, all charges against plaintiff were withdrawn by the Philadelphia District Attorney’s Office after plaintiff completed a program that required her to attend anger management classes and perform community service. Id. at 75:14-76:23.


Summary judgment will be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, [and on] which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating 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); see Celotex, 477 U.S. at 322-23. If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A fact is “material” if it might affect the outcome of the case under governing law. Id.

To establish “that a fact cannot be or is genuinely disputed, ” a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). The adverse party must raise “more than a mere scintilla of evidence in its favor in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). The “existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against” the movant. Ely v. Hall’s Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted).


I. Fourth Amendment Excessive Force ...

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