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Korth v. Hoover

United States District Court, M.D. Pennsylvania

October 16, 2017

GARY L. KORTH, Plaintiff
v.
JILL HOOVER, individually and in her official capacity; JOSEPH R. BAKER, individually and in his official capacity; and OLIVER TOWNSHIP, Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         Plaintiff, Gary L. Korth, filed this civil-rights action under 42 U.S.C. § 1983 accompanied by state-law claims. The suit arises from an alleged assault on Plaintiff committed by a police officer, Mark Botts, now deceased, employed by Oliver Township. Korth named as defendants the Township and two of its supervisors, Jill Hoover and Joseph Baker. At the time of the alleged assault, Plaintiff was visiting the Township Municipal Building and making a complaint to Hoover about Botts.

         After a series of procedural rulings, Hoover is the only defendant left in the case and on only two claims, a Fourth Amendment claim for use of excessive force and a state-law claim for assault and battery. We are considering her motion for summary judgment.

         II. Procedural History

         Plaintiff filed this action in state court, and it was removed here by Defendants. In response to a motion to dismiss the original complaint, Plaintiff filed an amended complaint. In the amended complaint, Plaintiff presented seven causes of action: (1) a Fourth Amendment excessive-force claim against Hoover and Baker; (2) a federal civil-rights supervisory-liability claim against Hoover and Baker for the injuries Botts inflicted by way of the deficient policies and practices they implemented; (3) a federal civil-rights municipal-liability claim against the Township for the injuries Botts inflicted based on deficient policies, practices, and customs; (4) a federal substantive due process claim against all three defendants for Botts' conduct; (5) a claim against all three defendants under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the Fourth Amendment; (6) a state-law claim against all the defendants for assault and battery; and (7) a state-law claim against all defendants for negligence.

         Defendants filed a motion to dismiss the amended complaint. In a memorandum detailing the pertinent allegations of the amended complaint, we ruled as follows, in relevant part. The Fourth Amendment excessive-force claim could proceed against Hoover but not against Baker, based on Hoover's direct personal involvement with the assault. The federal civil-rights supervisory-liability claim against Hoover and Baker was dismissed because Plaintiff failed to allege sufficient facts showing they had implemented deficient policies or customs that caused Plaintiff's injuries. The federal civil-rights municipal-liability claim against the Township was dismissed because Plaintiff failed to allege sufficient facts showing it had implemented deficient policies, practices, and customs that caused Plaintiff's injuries. The federal substantive due process claim was dismissed because Plaintiff's civil-rights claim was covered by the Fourth Amendment, not the Fourteenth Amendment. The Pennsylvania constitutional claim was allowed to proceed for injunctive relief but not for damages. The state-law claim for assault and battery was allowed to proceed against Hoover but not against the Township or Baker. The state-law claim for negligence was dismissed based on a state-law grant of immunity. See Korth v. Hoover, 190 F.Supp.3d 394 (M.D. Pa. 2016).

         Plaintiff filed a second amended complaint. In that pleading, Plaintiff set forth five causes of action. In Count 1, he made a Fourth Amendment claim against Hoover and Oliver Township for Botts' use of excessive force. In Count 2, he made a supervisory-liability claim against Hoover and Baker. In Count 3, he made a municipal-liability claim against Oliver Township. In Count 4, a repeat of the amended complaint's Count 5, he made a claim under the Pennsylvania Constitution, Art. I, § 8, against all three defendants for unspecified injunctive relief. In Count 5, he made a claim for assault and battery against Hoover.

         Defendants filed a motion to dismiss, which sought dismissal of Count 1 as against the Township, and dismissal of Counts 2 and 3. They argued that Plaintiff had once again failed to adequately allege supervisory or municipal liability based on policy or custom. They did not move to dismiss Counts 4 or 5. We granted the motion. Korth v. Hoover, 2016 WL 5719834, at *3 (M.D. Pa. Oct. 3, 2016).

         As a result, the remaining claims were: (1) Count 1 against Hoover for her direct personal involvement in the excessive force used by Botts; (2) Count 4, a claim under the Pennsylvania Constitution, Art. I, § 8, against all three defendants for unspecified injunctive relief; and (3) Count 5, a state-law claim for assault and battery against Hoover.

         Defendants filed an answer to the second amended complaint on October 24, 2016. Thereafter, they filed a “motion for a protective order and/or order clarifying remaining claims.” The motion requested that we “strik[e] any remaining claims for injunctive relief” and that we dismiss Oliver Township and Joseph Baker from the action. The request to strike the claims for injunctive relief was essentially directed at Count 4 of the second amended complaint, the count seeking unspecified injunctive relief against the three defendants under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the Fourth Amendment. We treated the motion as one for judgment on the pleadings and granted it. Korth v. Hoover, 2017 WL 2653151 (M.D. Pa. Jun. 20, 2017).

         There is thus left for resolution only two claims and against only one defendant -- Hoover. The claims are a federal claim for use of excessive force under the Fourth Amendment and a state-law claim for assault and battery. As noted, Hoover has moved for summary judgment on the claims.

         III. Standard of Review

         Fed. R. Civ. P. 56 governs the grant of summary judgment. The moving party is entitled to summary judgment if she “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 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.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)(citation omitted).

         In pertinent part, parties moving for, or opposing, summary judgment must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The non-moving party cannot rest on mere pleadings or allegations, ” El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). “To survive summary judgment, a party must present more than just ‘bare assertions, conclusory allegations or suspicions . . . .'” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)(cited case omitted). “‘[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.'” Blair, Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)(cited case omitted).

         We “must view all evidence and draw all inferences in the light most favorable to the non-moving party” and we will only grant the motion “if no reasonable juror could find for the non-movant.” Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).

         IV. Background

         The following is the record for the purposes of defendant Hoover's motion for summary judgment, based on her statement of undisputed material facts, Plaintiff's counter-statement, and the evidence the parties have submitted in support. We will sometimes borrow the parties' language without attribution. When we cite to only one party's statement, or ...


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