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Gregor v. Johnsen

United States District Court, M.D. Pennsylvania

August 5, 2019


          Kane Judge



         Before 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).

         I. BACKGROUND[1]

         A. Procedural Background

         Plaintiff 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 disposition.

         B. Magistrate Judge Carlson's Report and Recommendation

         In his 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. 2007)).

         Next, 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.)


         A. Standard of Review Applicable to a Motion for Summary Judgment

         Federal 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)).

         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.” 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).

         B. Standard of Review Applicable to this Court's Review of the Report and Recommendation

         The 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 ...

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