United States District Court, W.D. Pennsylvania
OPINION AND ORDER
MARILYN J. HORAN, UNITED STATES DISTRICT JUDGE
25, 2018, Plaintiff Marquell Atkinson filed suit in the
present matter against Defendants Thomas C. McCarthy and
Anthony Glab. (ECF No. 1). Plaintiff Atkinson subsequently
filed an Amended Complaint, alleging a claim of excessive
force pursuant to 42 U.S.C. § 1983 against each
Defendant. (ECF No. 15). Following discovery, Defendants
filed the present Motion for Summary Judgment on July 31,
2019. (ECF No. 31). The parties briefed the issues, (ECF Nos.
34, 38, 43), and they provided Concise Statements of Facts
and appendices, (ECF Nos. 32-33, 39-42).
following reasons, the Motion for Summary Judgment will be
granted, and judgment will be entered in favor of Defendants.
24, 2016, at approximately 9:40 p.m., Marquell Atkinson
pulled into the parking lot of a Kwik Fill gas station in
California Borough, Pennsylvania. ECF No. 32, at ¶¶
5, 9. California Borough Police Officer Thomas C. McCarthy,
on duty and in full uniform, was already present at the Kwik
Fill. Id. at ¶¶ 4, 5. Officer
McCarthy's marked patrol car was parked at the gas pumps.
Id. at ¶ 6. Mr. Atkinson parked his black Ford
Expedition at the gas pumps as well, adjacent to Officer
McCarthy's patrol vehicle. Id. at ¶¶
8, 10. Mr. Atkinson's front windows were down, and he was
playing music loudly over his vehicle's speakers.
Id. at ¶ 12. Two uniformed security guards, who
were also present at the Kwik Fill, testified that the music
was so loud that it caused the windows of the gas station to
vibrate. Id. at ¶ 7; ECF No. 33-5, at 4-5; ECF
No. 33-6, at 3-6. Mr. Atkinson got out of his vehicle,
intending to go inside the gas station for a snack, and left
the vehicle running with the windows down and the music
playing. ECF No. 32, at ¶ 13; ECF No. 39, at ¶ 53.
McCarthy, who was also in the parking lot, asked that Mr.
Atkinson turn down his music. ECF No. 32, at ¶ 14; ECF
No. 39, at ¶ 14; ECF No. 33-3, at 9. According to Mr.
Atkinson, he told Officer McCarthy that "he was just
running into the store and coming right back out." ECF
No. 39, at ¶ 61. Officer McCarthy asked Mr. Atkinson at
least two more times to turn down the music, and he advised
Mr. Atkinson that playing loud music constituted disorderly
conduct. ECF No. 39, at ¶¶ 63, 65; ECF No. 41, at
¶ 65. Mr. Atkinson disagreed and told Officer McCarthy
that playing loud music was not disorderly conduct. ECF No.
39, at ¶ 66. Mr. Atkinson also alleges that Officer
McCarthy referred to the music as "f- ing black ghetto
music." Id. at ¶¶ 63, 69.
McCarthy radioed fellow California Borough Police Officer
Anthony Glab for assistance. ECF No. 32, at ¶ 16.
Officer McCarthy then approached Mr. Atkinson and asked him
to provide identification. Id. at ¶¶ 15,
17. According to Officer McCarthy, he advised Mr. Atkinson
that he was going to give Mr. Atkinson a citation for
disorderly conduct. Id. at ¶ 17. Mr. Atkinson
contends that he was not so advised. ECF No. 39, at ¶
17. Mr. Atkinson removed his identification from his wallet
and extended it toward Officer McCarthy with his right hand.
ECF No. 32, at ¶¶ 18, 20; ECF No. 39, at
¶¶ 19, 68; ECF No. 41, at ¶ 68. Officer
McCarthy testified when he reached for the identification,
Mr. Atkinson pulled it back so that it was out of Officer
McCarthy's reach. ECF No. 32, at ¶ 20. Mr. Atkinson
denies this, although at his subsequent criminal trial he
testified that "the only time I pulled it back is when
he approached me." ECF No. 39, at ¶ 20; ECF No.
33-7, at 5. The surveillance video of the parking lot
unfortunately does not provide clarity on this point, due to
the positions of Officer McCarthy and Mr. Atkinson relative
to the camera. ECF No. 33-4.
McCarthy then grabbed Mr. Atkinson's left arm, and he
advised Mr. Atkinson that he was under arrest. ECF No. 32, at
¶¶ 21-23; ECF No. 33-3, at 10. Officer McCarthy
pushed Mr. Atkinson up against the patrol car in order to
detain him. ECF No. 32, at ¶ 24. According to Officer
McCarthy, Mr. Atkinson pushed off the car and kicked his leg
back twice at Officer McCarthy. Id. at ¶ 26.
Mr. Atkinson, however, denies pushing off the car or kicking
back at Officer McCarthy. ECF No. 39, at ¶ 26. Instead,
Mr. Atkinson contends that his leg "kicked back twice in
a bracing motion due to [Officer McCarthy's] force and
contact." Id. After the second kick, Officer
McCarthy took Mr. Atkinson to the ground. ECF No. 32, at
¶ 27. Officer McCarthy testified that once on the
ground, that he told Mr. Atkinson repeatedly to "stop
resisting" and "put your hands behind your
back." Id. at ¶ 28. Mr. Atkinson denies
being told to stop resisting. ECF No. 39, at ¶¶ 28,
31; ECF No. 33-7, at 10; ECF No. 40-3, at 23. Additionally,
Mr. Atkinson testified that he did not resist throughout the
entire incident, and that Officer McCarthy could have easily
handcuffed him at any time. ECF No. 39, at ¶¶ 28,
71, 82; ECF No. 33-3, at 10-11. At Mr. Atkinson's
criminal trial, however, he was asked, "You did struggle
with Officer McCarthy; is that correct?", to which he
answered, "Yes." ECF No. 33-7, at 10.
Glab arrived at the gas station and got out of his patrol
car. ECF No. 32, at ¶¶ 30-31. Officer Glab
testified that he heard Officer McCarthy ordering Mr.
Atkinson to "stop resisting" and to place his hands
behind his back. Id. at ¶ 31. Officer Glab also
testified that he observed Officer McCarthy and Mr. Atkinson
on the ground, that Mr. Atkinson was not handcuffed, and that
Mr. Atkinson's hands were underneath him. Id. at
¶ 32. Mr. Atkinson testified that his hands were not
underneath him, as Officer McCarthy had Mr. Atkinson's
left arm behind his back and his right arm was extended,
holding out his identification. ECF No. 39, at ¶ 32.
Again, the surveillance video is not entirely helpful here,
as the grainy quality of the picture makes it difficult to
see where each of the parties' hands are. ECF No. 33-4.
to Officer Glab, he too ordered Mr. Atkinson to stop
resisting and to place his hands behind his back. ECF No. 32,
at ¶ 34. Mr. Atkinson denies that Officer Glab made
these statements to him. ECF No. 39, at ¶ 34. Officer
Glab also testified that he tried to pull one of Mr.
Atkinson's arms behind his back, but was unable to do so
due to Mr. Atkinson's resistance. ECF No. 33-2, at 11. In
the surveillance video, though grainy, it appears that
Officer Glab tugs at Mr. Atkinson's arm before reaching
for his taser. ECF No. 33-4; see also ECF No. 40-9
(Mr. Atkinson's expert's report, noting that in the
video, "Officers McCarthy and Glab appeared to attempt
to extract Atkinson's hands in order to secure them with
restraints"). Officer Glab then used his taser to
"drive-stun" Mr. Atkinson for three to five
seconds, after which the Officers handcuffed Mr. Atkinson and
assisted him to a standing position. ECF No. 32, at
¶¶ 36-39. The Officers searched Mr. Atkinson,
placed him in a patrol car, and transported him to the police
station. Id. at ¶ 40. Mr. Atkinson was charged
with several crimes, including Disorderly
Conduct-Unreasonable Noise and two counts of Resisting
Arrest. Id. at ¶ 48; ECF No. 39, at ¶ 48.
Mr. Atkinson was later found guilty of the Disorderly Conduct
charge, and not guilty of the Resisting Arrest charges. ECF
No. 32, at ¶ 48; ECF No. 39, at ¶ 48.
Mr. Atkinson's arrest, while still at the police station,
Mr. Atkinson claimed he was injured. ECF No. 32, at ¶
41. Mr. Atkinson was then transported to Monongahela Valley
Hospital, where he complained of, and was treated for, a head
injury. Id. at ¶¶ 42, 43. Mr. Atkinson
also alleges that he sustained various injuries as a result
of the Officers' use of force during his arrest,
including post-concussion headaches, neck sprain/strain, and
a re-aggravation of a left shoulder injury. ECF No. 39, at
¶ 103. Mr. Atkinson consequently filed the present suit.
Mr. Atkinson alleges a § 1983 claim of excessive force,
in violation of the Fourth and Fourteenth Amendments, against
Officer McCarthy in Count One and against Officer Glab in
Count Two. The Officers now seek summary judgment in their
to Federal Rule of Civil Procedure 56, a court must grant
summary judgment where the moving party "shows that
there is no genuine dispute as to any material fact" and
the moving party "is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). For a dispute to be genuine,
there must be "a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party."
Moody v. Atl City Bd of Educ, 870 F.3d 206, 213 (3d
Cir. 2017) (internal quotations omitted). Additionally, for a
factual dispute to be material, it must have an effect on the
outcome of the suit. Id.
reviewing and evaluating the evidence for a motion for
summary judgment, the court must "view the underlying
facts and all reasonable inferences therefrom in the light
most favorable to the" non-moving party. Blunt v.
Lower Merion Sch. Dist.,767 F.3d 247, 265 (3d Cir.
2014) (internal quotations omitted). However, where "the
non-moving party fails to make 'a sufficient showing on
an essential element of her case with respect to which she
has the burden of proof/" the moving party is entitled
to judgment as a matter of ...