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Johnson v. City of Philadelphia

United States District Court, E.D. Pennsylvania

April 30, 2015

GERALDINE JOHNSON, As Administratrix of the Estate of Kenyado D. Newsuan, Deceased, Plaintiff,


WILLIAM H. YOHN, District Judge

In the early morning hours of April 22, 2012, Kenyado Newsuan was naked, high on PCP, and causing a commotion outside of his girlfriend's home in north Philadelphia. Police Officer Thomas Dempsey responded to the scene, where he and Newsuan thereafter engaged in a violent altercation that ended with Dempsey fatally shooting Newsuan. Geraldine Johnson, Newsuan's sister and the administratrix of his estate, subsequently filed this lawsuit against Dempsey and the City of Philadelphia under a variety of federal and state causes of action. Essentially, Johnson claims that Dempsey used excessive force against Newsuan and that the city failed to properly train and supervise its officers in handling such a situation. The defendants filed a motion for summary judgment, to which the plaintiff responded. Because the undisputed facts show that Dempsey did not act unreasonably in his use of lethal force, all of plaintiff's claims must fail. Accordingly, I will enter judgment in favor of defendants.


For summary judgment purposes, the court views the facts in the light most favorable to the nonmoving party, which means that in cases such as this one, the court "adopt[s]... the plaintiff's version of the facts." Scott v. Harris, 550 U.S. 372, 378 (2007). Here, that account can be found in plaintiff's reply to defendants' statement of undisputed facts, see Pl.'s Reply (Doc. No. 12) at 2-7, as well as in plaintiff's own statement of facts, see id. at 8-11.[1] In both, plaintiff largely accepts defendants' account of the events in question. Where those accounts differ, however, I have relied on plaintiff's version of the facts.

On the morning of Sunday, April 22, 2012, Officer Thomas Dempsey was on solo patrol in a radio car in the city's 35th police district, which generally covers the Olney neighborhood of north Philadelphia. Dempsey Dep. 20:20-21:14, Oct. 28, 2014. While on duty, Dempsey was armed with an ASP baton, a taser, and his service weapon, a nine-millimeter handgun. Id. at 62:17-19; 63:1-3; 123:11-18. The handgun was kept in a belt holster with a locking mechanism designed to impede its accidental or improper removal. Id. at 123:19-124:7. At approximately 2:00 AM, Dempsey received a radio call about a naked man in public on the 5800 block of North Mascher Street. Id. at 85:17-23. Dempsey responded to the call along with two other officers who were also on patrol in the district at that time. Id. at 84:8-11. The officers did not find anyone at the reported location, so they resumed their patrols. Id. at 85:17-86:19. At approximately 5:30 AM, Dempsey received another call about a naked man at the intersection of North Mascher Street and Nedro Avenue, or the 5800 block of North Mascher Street. Id. at 87:12-23. Dempsey responded and did not find anyone matching that description. Id. at 91:10-92:13. Again, Dempsey resumed his patrol of the district. Id. at 92:17-21.

At approximately 6:00 AM, while he was writing a parking ticket on the 6000 block of North Mascher Street, Dempsey was flagged down by a passing motorist, who informed him that there was a naked man at North Mascher Street and Nedro Avenue. Id. at 95:13-18. Dempsey radioed in the information and drove to the 5800 block of North Mascher Street. Id. at 97:9-100:15. There, Dempsey saw a naked black man standing in the street. Id. at 101:7-9. The man, who would later be identified as Kenyado Newsuan, began walking toward the building in which his girlfriend lived. Id. at 104:21-24. Dempsey did not radio in to dispatch that he had arrived on the scene. Id. at 106:3-8.

Dempsey exited his patrol car and ordered Newsuan to come toward him. Defs.' Statement of Undisputed Facts (Doc. No. 10-1) at 3 ¶ 20; Pl.'s Reply at 4 ¶ 20. Dempsey saw that Newsuan was completely naked and appeared to be holding nothing in his hands. Pl.'s Reply at 4 ¶ 18. Newsuan then briefly entered and exited the building at 5834 North Mascher Street. Id. at 5 ¶ 21. Newsuan then moved toward Dempsey, and as he approached, Dempsey fired his taser at Newsuan. Defs.' Statement of Undisputed Facts at 3 ¶ 22; Pl.'s Reply at 4 ¶ 22. Plaintiff admits that at this point, the eyewitness most sympathetic to plaintiff's account- Newsuan's girlfriend, Christina La Torre-went back into her house and "did not see any further struggle between Newsuan and Officer Dempsey." Defs.' Statement of Undisputed Facts at 3 ¶ 25; Pl.'s Reply at 5 ¶ 25; La Torre Dep. 43:4-47:16, Nov. 10, 2014.

By plaintiff's own admission, being hit with a taser did not stop Newsuan from continuing to approach Dempsey, as Newsuan came up and grabbed Dempsey by the shirt. Pl.'s Reply at 10. Plaintiff admits that Newsuan then "began to struggle" with Dempsey. Id. at 5 ¶ 26.[2] Plaintiff further admits that "[d]uring the struggle, Newsuan slammed Officer Dempsey against parked cars and attempted to strike him in the head." Id. at ¶ 27. The force with which Newsuan threw Officer Dempsey against one car was such that it caused the side panel of the door to incur a 2-3 foot dent.[3] Plaintiff's reply admits and eyewitness testimony confirms this account: Juan Cruz, a resident of the 5800 block of North Mascher Street who viewed the events that morning, testified that Newsuan began "actually beating the officer" and "slamming the officer, sort of like his head or something, against the windshield of the [police] car." Cruz Dep. 11:19-12:9, Oct. 28, 2014. Raimundo Rivera, another resident of the same block who also witnessed the altercation, testified that Newsuan "slam[med] the officer against his patrol car and grab[bed] him by the neck and start[ed] pummeling his head against the car." Rivera Dep. 12:23-13:3, Oct. 28, 2014.

Newsuan next began pulling at the gun in Dempsey's belt holster. Dempsey Dep. 131:16-18. He attempted to take Officer Dempsey's gun. Defs.' Statement of Undisputed Facts at 3-4 ¶¶ 27, 30; Pl.'s Reply at 6 ¶¶ 30-31. Dempsey asserts that Newsuan "had a grip" and was "trying to pull on it" Id. at 132:3-4.[4] Again, eyewitnesses corroborate this account. Cruz testifies that "it seems like [Newsuan] was either going for the officer's gun or grabbing the officer's gun belt." Cruz Dep. 12:21-23. Rivera testifies that Newsuan "reach[ed] for his gun" and that as Newsuan "tr[ied] to reach for his gun, the officer [tried] to push him off with his hand, but at the same time he[] tr[ied] to reach for the gun so that [Newsuan] doesn't get it." Rivera Dep. 13:19-14:11. These accounts are not disputed.

At this point, Dempsey removed the handgun from his holster and fired it at Newsuan, taking two shots, then, after the first volley did not appear to bring him down, taking two more. Pl.'s Reply at 6 ¶¶ 31-32. According to an autopsy report from the medical examiner's office, Newsuan was struck twice in the chest and once in the abdomen, and he died as a result of these injuries. See Office of the Medical Examiner's Autopsy Report (Doc. No. 10-6) at 1-3. The medical examiner's office also produced a toxicology report, which found the drug phencyclidine (commonly known as PCP) present in Newsuan's blood. See Office of the Medical Examiner's Toxicology Report (Doc. No. 10-7) at 1.


"The 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). "Material facts are those that could affect the outcome of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Roth v. Norfalco, LLC, 651 F.3d 367, 373 (3d Cir. 2011) (citations and internal quotation marks omitted). To establish the existence or absence of a genuine dispute as to any material fact, a party must "cit[e] to particular parts of materials in the record" or "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)(A)-(B).

"In evaluating the motion, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'" Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 772 (3d Cir. 2013) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). More specifically, as the Third Circuit has noted, "a court ruling on summary judgment in a deadly-force case should be cautious... to ensure that the officer[ is] not taking advantage of the fact that the witness most likely to contradict [his] story-the person shot dead-is unable to testify. Thus, a court should avoid simply accepting what may be a selfserving account by the officer[]. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer['s] story, and consider whether this evidence could convince a rational fact finder that the officer[] acted unreasonably." Lamont v. New Jersey, 637 F.3d 177, 181-82 (3d Cir. 2011) (internal quotation marks and citations omitted). But, the Third Circuit added, "Just as in a run-of-the-mill civil action, the party opposing summary judgment in a deadly-force case must point to evidence- whether direct or circumstantial-that creates a genuine issue of material fact, and may not rely simply on the assertion that a reasonable jury could discredit the opponent[s'] account.'" ...

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