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Brogan v. Tunkhannock Township

United States District Court, M.D. Pennsylvania

March 21, 2018

TUNKHANNOCK TOWNSHIP, et al. Defendants.



         I. Introduction and Procedural History

         Presently before the Court is a Report and Recommendation ("R&R") (Doc. 96) by Magistrate Judge Carlson, in which he recommends that the motion to dismiss (Doc. 56) and motion for summary judgment (Doc. 75) by Defendants Tunkhannock Township and Officer Zdaniewicz be treated as a motion for summary judgment and that the motions be granted and summary judgment be entered in favor of these defendants. Plaintiff Patrick Brogan has filed Objections (Doc. 97) to the Magistrate Judge's R&R and a brief in support of the Objections (Doc. 98), to which Defendants Tunkhannock Township and Officer Zdaniewicz, as well as Defendant James Sebolka, have filed responses (Docs. 99, 100, 101).[1]

         On August 28, 2014, Plaintiff, Patrick Brogan, filed a Complaint in the above-captioned matter (Doc. 1) and subsequently filed an Amended Complaint on September 2, 2014 (Doc. 3) naming as defendants Tunkhannock Township, John Benjamin Zdaniewicz, and James Sebolka. The defendants filed motions to dismiss (Docs. 8, 10), and the Court granted in part and denied in part the Township and Officer Zdaniewicz's motion (Doc. 51) and denied Sebolka's motion in its entirety (Doc. 53).

         Plaintiff filed a Second Amended Complaint on August 26, 2015 setting forth five counts: unlawful seizure and search in violation of the Fourth Amendment against Tunkhannock Township and Zdaniewicz (Count I); excessive force in violation of the Fourth Amendment against Tunkhannock Township and Zdaniewicz (Count II); First Amendment Retaliation against Tunkhannock Township and Zdaniewicz (Count III); violation of Plaintiffs constitutional rights due to inadequate supervision/hiring/training against Tunkhannock Township (Count IV); and assault and battery against Sebolka (Count V). (Doc. 54). Defendants Tunkhannock Township and Officer Zdaniewicz thereafter filed a second Motion to Dismiss. (Doc. 56).

         Following the completion of discovery, Tunkhannock Township and Officer Zdaniewicz filed a motion for summary judgment (Doc. 75) requesting that summary judgment be granted in their favor on Counts l-IV. James Sebolka also filed a motion for summary judgment (Doc. 74) requesting that summary judgment be entered in his favor on Count V. The Court subsequently referred the motions to Magistrate Judge Carlson for the preparation of Reports and Recommendations on Defendants' pending motions.

         II. Analysis

         A District Court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report and Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1)(C); see also, Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); M.D. Pa. Local Rule 72.3.

         Here, Plaintiff objects to the Magistrate Judge's R&R "in its entirety." (Doc. 97, at ¶1). Specifically, Plaintiff (1) objects to the Magistrate Judge's consideration of Plaintiffs conviction of the charge of harassment by physical contact (18 Pa. C.S. §2709(a)(1)) when analyzing Plaintiffs claims against the defendants; (2) asserts that the Magistrate Judge erred in his analysis of Plaintiffs First Amendment claim; (3) argues that he never brought a false arrest claim, but rather an unlawful search and seizure claim, which was not analyzed in the R&R; (4) asserts that Officer Zdaniewicz is not entitled to qualified immunity on Plaintiffs excessive force claim; and (5) argues that he established a Monell claim against the Township. (Doc. 98).[2] The Court will address these arguments in turn.

         Plaintiffs first Objection is that the Magistrate Judge was incorrect to consider the fact that he was convicted of harassment because harassment is "not a crime", but rather a summary offense. (Doc. 98, at 4). Plaintiff fails to cite a single federal case in support of his contention that his conviction for a summary offense is inadmissible and cannot be considered by the Court when analyzing whether a party has presented evidence to establish his or her constitutional claim sufficient to defeat summary judgment. Rather, Courts within this Circuit have repeatedly considered a person's conviction or guilty plea on a summary offense when determining whether that person can prevail on certain constitutional claims. See e.g., Deitrick v. Costa, 2014 WL 268681 (M.D. Pa. 2014)[3]; Hayhurst v. Upper Makefield Twp., 2007 WL 1795682 (E.D. Pa. 2007) (finding on summary judgment that Plaintiffs claim for unlawful arrest pursuant to § 1983 was barred by Heck v. Humphrey because a ruling in Plaintiffs favor on that claim "would call into question the validity of her disorderly conduct conviction."); Burke v. Twp. Of Cheltenham, 742 F.Supp.2d 660 (E.D. Pa. 2010) (finding that Plaintiffs claims against certain defendants for false arrest, false imprisonment, unlawful restraint in handcuffs, and a lack of probable cause to arrest Plaintiff, were barred by Heck due to Plaintiffs guilty plea for disorderly conduct). As a result of the law in this Circuit, and Plaintiffs inability to direct the Court to any federal cases which support his position, the Court rejects Plaintiffs first Objection. Magistrate Judge Carlson was correct in considering Plaintiffs conviction for harassment to the extent that the conviction may invalidate certain claims that Plaintiff has brought against the defendants.

         The Court will next address Plaintiffs fourth Objection, which asserts that the Magistrate Judge erred in finding that Officer Zdaniewicz is entitled to qualified immunity on Plaintiffs excessive force claim (Count II) (Doc. 98, at 11-16), as the analysis of Count II is pertinent to the analysis of several of Plaintiffs other Objections.

         "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. ai'Kidd, 563 U.S. 731, 735 (2011) (internal citations omitted); see also, Saucier v. Katz, 533 U.S. 194 (2001). The District Court is "permitted to exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). The doctrine "gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Messerschmidt v. Miliender, 565 U.S. 535, 546(2012).

         Plaintiff asserts that Officer Zdaniewicz's alleged use of excessive force violated Plaintiffs Fourth Amendment rights. More specifically, the right at issue is the right to be free from the use of a taser by a police officer while engaged in a physical altercation with another individual. (See also, Doc. 96, at 39).[4] Here, in light of the circumstances presented to Officer Zdaniewicz at the time of the alleged use of excessive force, the Court finds that there is no material factual dispute which could allow a trier of fact to find that Officer Zdaniewicz unlawfully used excessive force against Plaintiff, and, even if a violation did occur, the right at issue was not "clearly established".

         A police officer's "use of force contravenes the Fourth Amendment if it is excessive under objective standards of reasonableness." Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386 (1989)). "The test of reasonableness under the Fourth Amendment is whether under the totality of the circumstances, 'the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations."' Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Graham, 490 U.S. at 397). Reasonableness must be evaluated from the "perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Relevant factors in determining whether an officer's use of force is objectively reasonable include:

the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he actively is resisting arrest or attempting to evade arrest by flight. A court in making a reasonableness assessment also may consider the possibility that the persons subject to the police action are violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.

Kopec, 361 F.3d at 776-777 (internal citation omitted). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Graham, 490 U.S. 386, at 396-397.

         Examining the "totality of the circumstances" in the present case, several facts are undisputed. Because the incident at issue occurred after midnight on June 26, 2014, it was dark outside. It is further undisputed that Officer Zdaniewicz was the only police officer on the scene prior to, and at the time, he observed the altercation between Brogan and Sebolka and deployed his taser. Plaintiff also does not dispute Defendants' statement of material fact that while Officer Zdaniewicz was speaking with Mr. Billhime, Brogan and Sebolka's neighbor, the Officer "heard screaming and observed Plaintiff and Mr. Sebolka engaged in a physical altercation." (Doc. 75-2, at ¶ 61; Doc. 86, at ¶ 61) (citing Dep. of Zdaniewicz, at 62-63).

         Furthermore, despite the conflicting testimony of Brogan, Sebolka, and Zdaniewicz, as to what occurred immediately prior to Brogan being tased and handcuffed, the police car dash video of the incident is instructive in presenting the Court with certain other irrefutable facts. See Scott v. Harris, 550 U.S. 372, 380-381 (2007) (Finding the Court "should have viewed the facts in the light depicted by the videotape"). The video definitively reflects the following sequence of events, as relevant to the issue of Officer Zdaniewicz's use of excessive force:

• Officer Zdaniewicz is first seen running towards Brogan and Sebolka approximately eight to ten seconds after the first indication of an altercation between the two men on the video.
• After running for six to seven seconds, Officer Zdaniewicz pulls out his taser while continuing to run towards Brogan and Sebolka.
• Approximately three seconds later, Brogan is struck by one prong of the taser, and falls to the ground one to two seconds after being tased.
• The entire time that Officer Zdaniewicz is seen on the video running towards Brogan and Sebolka, Brogan is to the side of/behind Sebolka, with his arms around Sebolka, whose arms are pinned against his chest by Brogan.

(See Police Dash-Cam video, 4:36:44-4:37:05).[5]

         Thus, the undisputed facts demonstrate that, in the middle of the night and while the only officer on the scene, Officer Zdaniewicz heard "screaming" and then observed a physical altercation between Brogan and Zdaniewicz during which Brogan had his arms around Sebolka and was pushing him against the police car. These facts alone demonstrate that, looking at the totality of the circumstances, Officer Zdaniewicz was placed in a position of having to make a quick judgment. He was presented with a situation in which it appeared possible, if not likely, that Sebolka was being subjected to an assault and battery, and that Brogan was therefore a threat to Sebolka's safety and possibly the Officer's own safety if not subdued. Officer Zdaniewicz was placed in a position wherein he needed to quickly assess sudden and violent circumstances, determine who the aggressor was, and make a split-second judgment as to how to end the fight and prevent the commission of further harm. Therefore, although there is no evidence that Officer Zdaniewicz had reason to believe that Brogan may be armed, a factor which mitigates the need to use force, here, the Officer, acting alone, needed to contend with two men engaged in a physical altercation, there was a clear possibility that the person subject to the police action was violent or dangerous, and the Officer had limited time in which to decide what actions were necessary, all factors which weigh in favor of finding the use of force to be reasonable.

         Assuming the use of some force was reasonable, the question is whether the amount of force used by Officer Zdaniewicz was reasonable. Officer Zdaniewicz was presented with a situation in which he had limited options to end a violent altercation. Although it is disputed whether Officer Zdaniewicz ordered Brogan and Sebolka to stop fighting, or said anything else prior to tasing Brogan, even assuming that he did not, the Officer deployed the taser only once. Plaintiff fails to offer any record evidence as to what other, less forceful, means were available to Officer Zdaniewicz to end the physical altercation. Additionally, even if Officer Zdaniewicz did have other, less forceful, means at his disposal to end the altercation, the very fact that a physical altercation was taking place before him, in which he had reason to believe that Brogan was the aggressor, [6] further supports the reasonableness of his actions in using a taser to subdue Brogan. See Saucier, 533 U.S. at 205 ("If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed."). Finally, although Brogan was taken to the hospital, he admitted that he was not seriously injured at the time as a result of being tased. (See e.g., Dep. of Brogan, at 130- 132, 142-143, 152-156). See Sharrarv. Falsing, 128 F.3d 810, 822 (3d Ctr. 1997) (finding that although the absence of physical injury does not necessarily signify that the force has not been excessive, "the fact that the physical force applied was of such an extent as to lead to injury is indeed a relevant factor to be considered as part of the totality.").

         To the extent that Plaintiff is now arguing that the excessive force consists of Officer Zdaniewicz handcuffing Brogan after tasing him, this argument fails for two reasons. First, this claim did not form the basis of Plaintiff's excessive force claim in his Second Amended Complaint. Second, for substantially the same reasons that the Officer's actions in tasing Brogan were reasonable under the totality of the circumstances, Officer Zdaniewicz's use of handcuffs was also reasonable. In the middle of the night and alone on the scene, Officer Zdaniewicz applied the handcuffs immediately following the altercation, and Brogan was only handcuffed for ten minutes (see Police Dash Video). At that time, having viewed the altercation between Brogan and Sebolka, the Officer could still have a reasonable belief that Brogan may pose a danger to Sebolka or the officer himself, and, because Officer Zdaniewicz was alone, needed to take precautionary measures to ensure that he had control over the situation and that no further violence ensued.

         Even if the Court were to assume, arguendo, that there was a genuine dispute of fact as to whether Officer Zdaniewicz violated Brogan's Fourth Amendment right by using excessive force, the Court must determine whether Officer Zdaniewicz is entitled to qualified immunity. Turning to the second prong of the Saucier analysis, the Court must determine whether the right not to be tased under these, or similar circumstances, was clearly established in June of 2014. See, e.g., Dull v. W. Manchester Twp, Police Dept, 604 F.Supp, 2d 739, 748-749 (M.D. Pa. 2009) ("The court may eschew difficult constitutional issues and award ...

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