United States District Court, M.D. Pennsylvania
ABRAHAM J. GREGOR, Plaintiff
OFFICER SCOTT JOHNSEN and THE CITY OF HARRISBURG Defendants
CARLSON MAGISTRATE JUDGE.
the Court are: the Report and Recommendation of Magistrate
Judge Carlson (Doc. No. 75), recommending that the Court
grant the motion for summary judgment filed by Defendants
Officer Scott Johnsen (“Defendant Johnsen”) and
the City of Harrisburg, Pennsylvania (“the City”)
(collectively referred to herein as “Defendants”)
as to all claims asserted in the above-captioned action;
Plaintiff Abraham J. Gregor (“Plaintiff”)'s
objections to the Report and Recommendation (Doc. No. 76);
and Defendants' response to Plaintiff's objections
(Doc. No. 79). Based on the following, the Court will
overrule Plaintiff's objections to the Report and
Recommendation (Doc. No. 76), adopt the Report and
Recommendation (Doc. No. 75), and grant Defendants'
motion for summary judgment (Doc. No. 67).
initiated the above-captioned action on February 7, 2014 by
filing a two-count complaint against Defendants, asserting a
Fourteenth Amendment excessive force claim against Defendant
Johnsen pursuant to 42 U.S.C. §1983 (Count I) and a
Fourteenth Amendment excessive force claim against the City
pursuant to 42 U.S.C. § 1983 (Count II) relating to a
confrontation between Plaintiff and Defendant Johnsen that
resulted in Defendant Johnsen shooting Defendant three times.
(Doc. No. 1.) On September 29, 2016, the Court referred the
above-captioned action to Magistrate Judge Carlson for
pretrial management and for issuance of a report and
recommendation on pretrial motions. (Doc. No. 57.) On July
21, 2017, Defendants filed a motion for summary judgment.
(Doc. No. 67.) After the motion was fully briefed (Doc. Nos.
69, 73, 74), Magistrate Judge Carlson issued the instant
Report and Recommendation, in which he recommends granting
Defendants' motion for summary judgment and closing the
above-captioned action, on November 3, 2017. (Doc. No. 75.)
On November 16, 2017, Plaintiff filed his objections to the
Report and Recommendation. (Doc. No. 76.) Defendants filed a
response to Plaintiff's objections on December 7, 2017.
(Doc. No. 79.) Because the time for further briefing has
passed, the Report and Recommendation is ripe for
Magistrate Judge Carlson's Report and
Report and Recommendation, Magistrate Judge Carlson
recommends that the Court grant Defendants' motion for
summary judgment. (Doc. No. 75.) In arriving at this
recommendation, Magistrate Judge Carlson separately addressed
the two claims asserted in Plaintiff's complaint.
(Id. at 8-23.) First, Magistrate Judge Carlson
concluded that Defendant Johnsen is entitled to qualified
immunity as to Plaintiff's excessive force claim.
(Id. at 8-20.) Magistrate Judge Carlson began his
analysis with the second prong of the qualified immunity
analysis-whether the constitutional right allegedly violated
was clearly established at the time that Defendant Johnsen
acted (id. at 10-20)-and concluded that Defendant
Johnsen's conduct did not violate any clearly established
constitutional right, and, therefore, Defendant Johnsen was
entitled to qualified immunity (id. at 20). In
reaching that conclusion, Magistrate Judge Carlson first
described the relevant law pertaining to the Fourth Amendment
right against excessive force. (Id. at 10-14.) He
then considered the particular factual circumstances of this
case, in which “a police officer fired three shots to
protect  himself from the threat of serious physical injury
or death” (id. at 15), and concluded that
Defendant Johnson “could have believed, in light of
what was in the decided case law, that [his] conduct was
lawful” (id. at 15) (internal quotation marks
omitted) (quoting Giuffre v. Bissell, 31 F.3d 1241,
1255 (3d Cir. 1994)). Magistrate Judge Carlson distinguished
the circumstances of the instant case from those in
Lamont v. New Jersey, 637 F.3d 177 (3d Cir.
2011), noting that in the instant case, it is undisputed that
Defendant remained armed with a knife throughout the duration
of the shooting, whereas in Lamont, “[t]he
Third Circuit concluded that the troopers could see that the
suspect's hand was empty-and thus that he was unarmed and
did not pose a threat to the troopers- almost immediately
after the first shots were fired.” (Id. at
16-17) (citing Lamont, 637 F.3d at 184). He further
distinguished the facts of the two cases by observing that:
[Defendant] Johnsen fired only 3 shots total with 2 of them
striking [Plaintiff] from behind, whereas the state troopers
in Lamont fired 39 shots and struck the suspect in
the back a total of 11 times[, ] [and] [t]he troopers in
Lamont also fired for approximately 10 seconds,
whereas [Plaintiff] does not posit that a specific amount of
time elapsed between [Defendant] Johnsen's first and
third shots[, ] although it is apparent that these shots were
fired in a rapid succession.”
(Id. at 17.) Magistrate Judge Carlson found that the
factual circumstances in the instant case are much more
similar to those in cases in which courts have found that the
officer-defendants were entitled to qualified immunity.
(Id. at 18-19) (citing Plumhoff v. Rickard,
572 U.S. 765, 777 (2014); Untalan v. City of Lorain,
430 F.3d 312, 315 (6th Cir. 2005); Mullins v.
Cyranek, 805 F.3d 760, 768 (6th Cir. 2015)).
Accordingly, Magistrate Judge Carlson concluded “that a
reasonable officer in [Defendant] Johnsen's position
would not have known beyond debate that firing those second
and third shots would have constituted excessive
force.” (Id. at 19) (citing Plumhoff,
572 U.S. at 777-78; Lamont, 637 F.3d at 183).
Magistrate Judge Carlson found that “although
[Plaintiff] claims that some facts remain in dispute, he has
failed to produce any evidence to establish that [Defendant]
Johnsen could not reasonably have believed that his use of
force was permissible under the circumstances.”
(Id.) In addition, Magistrate Judge Carlson rejected
Plaintiff's invocation of allegedly inconsistent
statements made by Dr. Wayne Ross- Defendants' former
expert-and Defendant Johnsen, concluding that “[t]o the
extent that some inconsistencies may remain between the
previous statements made by [Defendant] Johnsen and Dr. Ross
and  [D]efendants' current narrative, Plaintiff fails
to create anything more than ‘some metaphysical
doubt,' which is insufficient to preclude summary
judgment.” (Id. at 18 n.3) (citing Scott
v. Harris, 550 U.S. 372, 380 (2007); Sarmiento v.
Montclair State Univ., 513 F.Supp.2d 72, 92 (D.N.J.
Magistrate Judge Carlson concluded that summary judgment
should be granted in favor of the City in regard to
Defendant's Monell claim because there was no
evidence presented that the City had adopted a policy or
custom that caused the alleged constitutional violation.
(Id. at 20-23.) Magistrate Judge Carlson explained
that although Defendant cites the City's after-the-fact
failure to discipline Defendant Johnsen in support of this
claim, such conduct is not sufficient evidence to establish
that the City caused the alleged constitutional wrongdoing.
(Id. at 21-23.)
STANDARD OF REVIEW
Standard of Review Applicable to a Motion for Summary
Rule of Civil Procedure 56 governs the grant of summary
judgment. Parties may move for summary judgment on particular
claims or defenses, or on a part of each claim or defense.
See Fed.R.Civ.P. 56(a). “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.” Id.
“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
non-moving party.'” Pearson v. Prison Health
Serv., 850 F.3d 526, 534 (3d Cir. 2017) (internal
quotation marks omitted) (quoting Lamont, 637 F.3d
at 181 (3d Cir. 2011)).
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.”
See Fed.R.Civ.P. 56(c)(1)(A). “The non-moving
party cannot rest on mere pleadings or allegations, ”
El v. Se. Pa. 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). The
Court “must view all evidence and draw all inferences
in the light most favorable to the non-moving party”
and will grant the motion only “if no reasonable juror
could find for the non-movant.” See Lawrence v.
City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).
Standard of Review Applicable to this Court's Review of
the Report and Recommendation
Magistrate Act, 28 U.S.C. § 636, and Federal Rule of
Civil Procedure 72(b) provide that any party may file written
objections to a magistrate judge's proposed findings and
recommendations. In deciding whether to accept, reject, or
modify the Report and Recommendation, the Court is to make a
de novo determination of those portions of the