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Maxwell v. Nutter

United States District Court, Eastern District of Pennsylvania

March 23, 2015




This is a pro se civil rights action pursuant to 42 U.S.C. § 1983 brought by Tyreek M. Maxwell, against the Mayor of Philadelphia, its Police Commissioner, and an officer of its Police Department. In my Memorandum denying in part and granting in part the defendants’ partial motion to dismiss, I struck the portion of the complaint which could have been construed as the Mayor and Police Commissioner being sued in their official capacities, and pursuant to Rule 19(a)(2) of the Federal Rules of Civil Procedure, I added the City of Philadelphia as a defendant. See Tyreek M. Maxwell v. Michael Nutter, et al., 2013 U.S. Dist. LEXIS 10787 (E.D. Pa. January 23, 2013). I also denied the motion to dismiss as to the Mayor and Police Commissioner in their individual capacities.

The defendants have filed a partial motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Mr. Maxwell has also filed a motion for summary judgment pursuant to Rule 56. For the following reasons, I will grant the defendants’ partial motion in its entirety, and deny Mr. Maxwell’s motion in its entirety.


The complaint alleges that on the evening of December 30, 2009, Philadelphia Police Officer William Moser shot Mr. Maxwell twice. Officer Moser claimed that he was justified in the shooting because he claimed that Mr. Maxwell had pointed a gun at him.

Mr. Maxwell attached to his motion for summary judgment the transcript of Officer Moser’s testimony at Mr. Maxwell’s preliminary hearing. Officer Moser testified that he was responding to dispatch radio calls concerning two possible murder suspects in his area of patrol in Philadelphia. Officer Moser spotted two individuals who matched the rather barebones radio description. He exited his vehicle to investigate, and after announcing that he was a police officer, ordered the two men to stop and place their hands on the wall. One gentleman complied. Mr. Maxwell did not. In fact, Officer Moser testified that Mr. Maxwell spun around toward him, placed his hand in his jacket pocket, and pulled out a revolver. In that split second, Officer Moser shot Mr. Maxwell twice. Mr. Maxwell’s revolver flew out of his hand and landed into the adjacent house’s yard. The gun was recovered shortly thereafter by a highway officer. See Document #23.

Mr. Maxwell was taken to Temple University Hospital for treatment of his gunshot wounds. The complaint alleges that he has suffered from “anxiety disorder, post-traumatic stress disorder, panic attacks, severe stress, anxiety, severe depression, flashbacks, and insomnia.” See Compl. at 3.

Mr. Maxwell was arrested and charged with murder, attempted murder of a police officer, aggravated assault of a police officer, and carrying firearms in public. The murder and attempted murder charges were withdrawn, but Mr. Maxwell was found guilty of aggravated assault and carrying firearms in public. See Commonwealth v. Maxwell, CP-51-CR-0006371-2010. It appears from the docket that Mr. Maxwell received a one to two year sentence of imprisonment to run consecutively with the sentence he was serving at the time on unrelated charges. Id.

Mr. Maxwell brought this complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights stemming from the December 2009 incident. In his summary judgment motion, Mr. Maxwell specifically confines his claims to excessive force against Officer Moser in violation of the Eighth[1] and Fourteenth Amendments, failure to train against the Mayor and Police Commissioner, and a Monell claim against the City of Philadelphia for failure to train. On February 9, 2012, I granted Mr. Maxwell’s motion for appointment of counsel and directed the Clerk of Court to appoint an attorney from the Civil Rights Panel to represent Mr. Maxwell. Unfortunately, that attempt was unsuccessful and Mr. Maxwell chose to continue to proceed pro se in this action. See Documents #18 and 19.

Discovery in this action terminated on February 20, 2014. Mr. Maxwell sent the defendants discovery requests including interrogatories and document requests to which the defendants responded with objections. Mr. Maxwell filed no motions to compel after receiving the defendants discovery responses and objections. Further, he did not take the deposition of any of the defendants, and he has not taken the deposition of any representative of the defendants.


A court shall grant summary judgment if the movant 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). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. A party asserting that a fact is genuinely disputed must support the assertion by: citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials. Fed.R.Civ.P. 56(c)(1)(A). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual 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, 477 U.S. at 322.

Under Rule 56, the court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has exceeded the mere scintilla of evidence threshold and has offered a genuine issue of material fact, then the court cannot credit the movant’s version of events against the opponent, even if the ...

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