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Atkinson v. McCarthy

United States District Court, W.D. Pennsylvania

December 16, 2019

MARQUELL ATKINSON, Plaintiff,
v.
THOMAS C. MCCARTHY and ANTHONY GLAB, Defendants.

          OPINION AND ORDER

          MARILYN J. HORAN, UNITED STATES DISTRICT JUDGE

         On June 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).

         For the following reasons, the Motion for Summary Judgment will be granted, and judgment will be entered in favor of Defendants.

         I. Background

         On June 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.

         Officer 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.

         Officer 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.

         Officer 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.

         Officer 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.

         According 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.

         Following 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 favor.

         II. Legal standard

         According 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.

         In 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 ...


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