United States District Court, M.D. Pennsylvania
GARY L. KORTH, Plaintiff
JILL HOOVER, individually and in her official capacity; JOSEPH R. BAKER, individually and in his official capacity; and OLIVER TOWNSHIP, Defendants
William W. Caldwell United States District Judge.
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
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
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.
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).
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.
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).
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.
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).
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.
Standard of Review
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).
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).
“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).
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 ...