United States District Court, W.D. Pennsylvania
Barry Fischer, United States District Judge
an excessive force case initiated by a pair of brothers,
Plaintiffs Will El and Beyshaud El (collectively the
“El Brothers”), against the City of Pittsburgh
(the “City”) and three of its officers: Reyne
Kacsuta (“Lieutenant Kacsuta”), Frank Welling
(“Officer Welling”), and Ryan Warnock
(“Officer Warnock”) (collectively the
“individual officer Defendants”). Pending before
the Court is the motion for summary judgment filed by the
City and the individual officer Defendants with respect to
all counts contained in the second amended complaint filed
against them by the Plaintiffs. (Docket No. 106). Count I of
the second amended complaint alleges a 42 U.S.C. § 1983
(“§ 1983”) Fourth Amendment excessive force
claim against the individual officer Defendants. Count II of
the second amended complaint alleges a Monell v.
Dep't of Soc. Serv. of City of N.Y, 436 U.S. 658
(1978) § 1983 municipal liability claim against the
City. Count III of the second amended complaint alleges a
state law assault and battery claim against the individual
Defendants filed their motion for summary judgment and
supporting documents on January 19, 2018. (Docket Nos.
106-109). The Plaintiffs filed their brief in opposition and
related documents on March 12, 2018. (Docket Nos. 116,
118-119). Because the Plaintiffs' filings did not include
a responsive concise statement of facts as required by Local
Rule 56, the Court ordered them to file same no later than
April 2, 2018. (Docket No. 120). The Defendants filed their
reply brief on March 23, 2018. (Docket No. 122). On March 28,
2018, the Plaintiffs filed their “counter
opposition” to Defendants' concise statement of
facts, (Docket No. 123), and the Defendants filed an errata
regarding their appendix to include inadvertently omitted
deposition testimony of Beyshaud El, Will El, and Lieutenant
Kacsuta. (Docket No. 124). The Plaintiffs filed their
surreply on March 30, 2018. (Docket No. 125). Oral argument
was held on the motion for summary judgment on April 12,
2018. (Docket No. 129). The Defendants filed a supplemental
brief on April 20, 2018. (Docket No. 130). The Plaintiffs
filed a supplemental brief on April 27, 2018. (Docket No.
132). Defendants filed a supplemental concise statement of
material fact in support of their motion for summary judgment
on May 4, 2018. (Docket No. 133). Plaintiffs filed a response
in opposition to Defendants' supplemental concise
statement of material facts on May 13, 2018. (Docket No.
134). The motion for summary judgment, thus, is ripe for
Standard of Review
judgment is appropriate when “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);
see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The parties must support their respective
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 purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment
may be granted only if there exists no genuine issue of
material fact that would permit a reasonable jury to find for
the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986).
“When confronted with cross-motions for summary
judgment, the ‘court must rule on each party's
motion on an individual and separate basis, determining, for
each side, whether a judgment may be entered in accordance
with the Rule 56 standard.'” Anderson v.
Franklin Institute, 185 F.Supp.3d 628, 635 (E.D. Pa.
2016) (quoting Schlegel v. Life Ins. Co. of N.
America, 269 F.Supp.2d 612, 615 n. 1 (E.D. Pa. 2003);
Charles A. Wright, Arthur R. Miller et al., 10A Fed. Prac.
and Proc. § 2720 (3d ed. 1998).
reviewing the evidence, the court draws all reasonable
inferences in favor of the non-moving party. See Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Huston v.
Procter & Gamble Paper Prod. Corp., 568 F.3d 100,
104 (3d Cir. 2009) (citations omitted). It is not the
court's role to weigh the disputed evidence and decide
which is more probative, or to make credibility
determinations. See Anderson, 477 U.S. at 255;
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004); Boyle v. County of Allegheny, 139 F.3d
386, 393 (3d Cir. 1998). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 247-48. An issue is
“genuine” if a reasonable jury could possibly
hold in the non-movant's favor with regard to that issue.
See Id. “Where the record taken as a whole
could not lead a reasonable trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.'” Matsushita, 475 U.S. at 587;
Huston, 568 F.3d at 104.
Dash-Cam Video evidence
explained in greater detail below, much of the events at
issue in this action were videotaped by a Dash-Cam attached
to a police vehicle that arrived on the scene driven by
Officer Siara Lawniczak (“Officer Lawniczak”).
The video from Officer Lawniczak's Dash-Cam (‘the
“Dash-Cam Video”) was introduced and entered into
evidence at the April 12, 2018 oral argument on the motion
for summary judgment, was shown to the Court during oral
argument, and has been reviewed repeatedly by the Court in
deciding the pending motion for summary judgment.
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769
(2007), the United States Supreme Court reviewed the lower
courts' denial of the defendant police officer's
motion for summary judgment with respect to the
plaintiff's § 1983 use of excessive force in
violation of the Fourth Amendment claim on the basis of
qualified immunity. In support of the police officer's
motion, the officer had submitted a videotape that captured
the events in question. Scott, 550 U.S. at 379. In
discussing how to review the videotape in the context of
deciding the pending motion for summary judgment, the
Scott Court explained:
The first step in assessing the constitutionality of [the
police officer's] actions is to determine the relevant
facts. As this case was decided on summary judgment, there
have not yet been factual findings by a judge or jury, and
[the plaintiff's] version of events (unsurprisingly)
differs substantially from [the police officer's]
version. When things are in such a posture, courts are
required to view the facts and draw reasonable inferences
“in the light most favorable to the party opposing the
[summary judgment] motion.” In qualified immunity
cases, this usually means adopting (as the Court of Appeals
did here) the plaintiff's version of the facts.
There is, however, an added wrinkle in this case: existence
in the record of a videotape capturing the events in
question. There are no allegations or indications that this
videotape was doctored or altered in any way, nor any
contention that what it depicts differs from what actually
happened. The videotape quite clearly contradicts the version
of the story told by respondent and adopted by the Court of
Appeals. . . .
At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a “genuine” dispute as to those facts. Fed. Rule
Civ. Proc. 56(c). As we have emphasized, “[w]hen the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts .... Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no
‘genuine issue for trial.'” “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact.” When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue
whether respondent was driving in such fashion as to endanger
human life. [The plaintiff's] version of events is so
utterly discredited by the record that no reasonable jury
could have believed him. The Court of Appeals should not have
relied on such visible fiction; it should have viewed the
facts in the light depicted by the videotape.
Id. at 380-81 (citations and footnote omitted).
Consistent with the Supreme Court's mandate in
Scott, in reviewing the motion for summary judgment,
to the extent that they are relevant, the Court will view the
events shown in the videotape “in the light depicted by
the videotape.” See also Ickes v.
Grassmeyer, Civ. No. 3:13-208, 2016 WL 4272358, at *4 n.
3 (W.D. Pa. Aug. 11, 2016), aff'd sub
nom. Ickes v. Grassmyer, 704 Fed.Appx. 190 (3d
Cir. 2017) (although plaintiff had testified that no one
asked him to get out of the car, where this command could be
heard clearly on the dash cam video of the incident, court
determined, “[b]ecause no reasonable juror could
conclude that Plaintiff was never asked to get out of the
car, the Court will view this fact in the light depicted in
the dash cam video for purposes of deciding the pending
motions for summary judgment.”) (citing Scott,
550 U.S. at 380).
is a recitation of the facts relevant to the Defendants'
motion for summary judgment. On July 2, 2013, Lieutenant
Kacsuta observed the El Brothers leaving the “One
Stop” convenient store in the Homewood neighborhood of
Pittsburgh. (Docket No. 109-3 at 2). Beyshaud El, who was 18
years old at the time, was holding “a green foil
object” in his hand “in front of his body.”
(Id.). In light of current undercover police reports
that the “One Stop” store was illegally selling
synthetic marijuana, Lieutenant Kacsuta was suspicious that
the object in Beyshaud El's hand was illegally purchased
synthetic marijuana. (Id. at 3-4).
Kacsuta approached the El Brothers in her cruiser and asked
to speak to them; they declined and crossed the street away
from her. (Docket No. 109-2 at 6). This apparently increased
Lieutenant Kacsuta's suspicion that the El Brothers
illegally possessed synthetic marijuana, so she turned her
car around to investigate them for same. (Docket No. 109-3 at
Kacsuta got out of her car, stopped the El Brothers, and
asked them to sit down on the stoop of a vacant storefront;
they complied (Docket No. 109-5 at 17). She asked Will El for
identification, Will El gave it to her, emptied his pockets
onto the sidewalk, and told Beyshaud El to do the same so
that Lieutenant Kacsuta knew they did not have anything on
them and they were not doing anything. (Docket Nos. 190-2 at
6, 109-5 at 2). At that point, the El Brothers were not free
to leave. (Docket No. 116-2 at 16).
became clear to Lieutenant Kacsuta that the El Brothers did
not have synthetic marijuana in their possession. (Docket
116-2 at 21). Nevertheless, Lieutenant Kacsuta did not
release the El Brothers because a tobacco product had come
out of the store with the El Brothers. (Id. at
21-22). Beyshaud El was 18 years old and Will El was 22 years
old, so this would not be illegal. Beyshaud El, however, did
not have a form of identification on him. (Docket No. 124-3
at 3). Given his youthful appearance and lack of
identification, Lieutenant Kacsuta now suspected that the
store illegally sold Beyshaud El a tobacco product or he
illegally possessed a tobacco product. (Docket No. 116-2 at
Kacsuta had called for back-up prior to getting out of her
car. (Id. at 22). She knew that Officers Welling and
Warnock were in the area. (Id.). Officers Welling
and Warnock arrived on the scene together in less than two
minutes. (Id.). Ultimately, five additional officers
reported to the scene to support Lieutenant Kacsuta. (Dash
Cam Video 13:47:21).
arrival at the scene of the stop of the El Brothers, Officer
Welling did not know why the Plaintiffs had been stopped by
Lieutenant Kacsuta. (Docket No. 116-4 at 12). He just knew
they were under investigation and detained for whatever
reason Lieutenant Kacsuta had stopped them. (Docket No. 116-4
at 12). Officer Warnock also did not know why the El Brothers
had been stopped by Lieutenant Kacsuta. (Docket No. 116-5 at
2). Lieutenant Kacsuta did not tell Officer Warnock to make
sure they remained seated. (Id.).
the El Brothers were seated on the curb, Lieutenant Kacsuta
picked up Will El's identification from the ground,
looked at it, and dropped it on the ground. (Docket No. 124-1
at 6; Dash Cam Video 13:46:43). When Beyshaud El reached to
pick up his brother's license, Lieutenant Kacsuta stepped
on it. (Dash Cam Video 13:46:43). Throughout this time
period, the El Brothers were complaining that they were being
harassed. (Docket Nos. 116-2 at 23, 116-3 at 3).
to Will El, in response to his complaint of being harassed,
Officer Welling stated, “do you want to know what it
feels like to be harassed?” (Docket No. 124-3 at 5).
Will El then stood up, “to make sure the lieutenant
[Kacsuta] heard what [Officer Welling] said to [him].”
(Id. at 14). Will El took one or two small steps in
the direction of Lieutenant Kacsuta and Officer Warnock.
(Dash-Cam Video at 13:47:05). In response to Will El's
movement, Officer Welling grabbed Will El by his wrist and
neck and slammed him back into the wall of the vacant
storefront on which stoop the El Brothers had been seated,
and on to the pavement. (Id. at 13:47:06-07).
El was seated on the storefront stoop immediately next to
where Officer Welling and Will El were located when Officer
Welling grabbed Will El by his wrist and neck. (Id.
at 13:47:06). Upon seeing Officer Welling grab his brother,
Beyshaud El immediately stood up, turned towards Officer
Welling, and attempted to punch Officer Welling and otherwise
defend his brother. (Id. at 13:47:07). In response,
Officer Warnock deployed his taser into Beyshaud El's
side for five seconds, causing Beyshaud El to fall to the
ground. (Id. at 13:47:08; Docket No. 109-6 at 8).
Will and Beyshaud El on the pavement and not resisting, six
officers then handcuffed and placed the El Brothers under
arrest. (Id. at 13:47:19 and 13:47:27). This was the
first time Officer Warnock had deployed a taser in the field.
(Docket No. 116-5 at 11).
El was taken to the hospital and then to jail. (Docket No.
109-6 at 9). Will El was taken directly to jail.
(Id.). After his release from jail, on July 7, 2013,
Will El went to the emergency room of a local hospital
because of lower back pain. (Docket No. 109-5 at 9). He was
told at the emergency room that he had a hip contusion, which
he understood to be a deep bruise on his bone. (Id.
Brothers were initially charged with aggravated assault on a
police officer, but Allegheny County District Attorney
Stephen Zappala later amended these charges to summary
charges. (Docket No. 93 at 2). Will El was charged with
summary disorderly conduct. See 18 Pa.C.S. §
5503(a)(4) (“A person is guilty of disorderly conduct
if, with the intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he …
creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.”).
El was charged with summary harassment. See 18
Pa.C.S. § 2709(a)(1) (A person is guilty of harassment
when, “with intent to harass, annoy, or alarm another,
” he “strikes, shoves, kicks or otherwise
subjects the other person to physical contact, or attempts or
threatens to do the same.”).
April 14, 2014, the Honorable Kevin Sasinoski of the Court of
Common Pleas of Allegheny County (“Judge
Sasinoski”) presided over Will El and Beyshaud El's
joint bench trial. (Docket No. 109-7). Prior to the trial, by
order only and without issuing an opinion, Judge Sasinoski
denied the Plaintiffs' “Motion to Suppress and
Dismiss Charges.” (Docket No. 109-8). At the trial,
Judge Sasinoski responded to defense counsel's statement
that she did not see a punch in the video, as follows:
I did. And I'm the factfinder. It is obvious that one of
them wound up and took a swing at the officer. That punch is
clear. I ...