Opinion
Civil Action No. 03-5420
February 25, 2004
Philip W. Newcomer, MONTGOMERY COUNTY SOLICITOR'S OFFICE, Norristown, PA, for Officer McCann, Defendant
ORDER
AND NOW, this ___ day of ___, 2004, upon consideration of the Defendant Officer McCann's Motion in Limine to Preclude the Testimony of Inmate Maurice Stone, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. Inmate Maurice Stone is hereby precluded from testifying on behalf of Plaintiff in the above-captioned action.
MOTION IN LIMINE OF DEFENDANT OFFICER McCANN TO PRECLUDE THE TESTIMONY OF INMATE MAURICE STONE
Defendant Officer McCann ("Officer McCann"), through his undersigned counsel, hereby moves, pursuant to this Court's Scheduling Order of January 15, 2004 for an Order precluding the testimony of inmate Maurice Stone. The arguments and authorities supporting this motion are set forth in the accompanying memorandum of law, which Officer McCann incorporates herein by reference.MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT OFFICER McCANN'S MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF INMATE MAURICE STONE
Well after the close of fact discovery, Plaintiff filed a response to the summary judgment motion of Defendant Officer McCann ("Officer McCann") in which Plaintiff disclosed to counsel and the Court for the first time that he had a supposed witness to the events at issue who he planned to call at trial — Dr. Maurice Stone. Plaintiff asserts that this witness is "currently an inmate at the State Correctional Facility at Waymart [formerly known as Fairview State Hospital]" and that the witness "saw everything that happened to me on the date of the incident[.]" Plaintiff's Response to Officer McCann's Summary Judgment Motion, pg. 2.The problem with Plaintiff's effort to call this inmate as a witness is this: Plaintiff never served a self-executing disclosure during the discovery period identifying this witness as required by the Federal Rules of Civil Procedure, the Local Rules of Civil Procedure and the January 6, 2004 Order of this Court. By belatedly announcing the supposed significance of this inmate's testimony now after the close of discovery, Plaintiff has effectively sand-bagged the defense and prevented effective cross-examination of this proposed witness or the offering of rebuttal evidence.
"The purpose of modern discovery rules is to allow the parties to obtain the fullest possible knowledge of the issues and facts before trial." Crossley v. Iroquois Foundry Co., 1992 WL 114956, *2 (E.D. Pa. May 18, 1992). Plaintiff has clearly thwarted that purpose here, thereby prejudicing Officer McCann's defense. As the district court noted inSheppard v. Glock, Inc., 176 F.R.D. 471, 473 (E.D. Pa. 1997) (emphasis added):
Rule 16(f) of the Federal Rules of Civil Procedure authorizes sanctions for the failure of a party . . . to obey a scheduling order. It provides that the court `may make such orders with regard to thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C). and (D).' One acceptable penalty is `prohibiting th[e] party from introducing designated matters in evidence.' Fed.R.Civ.P. 37(b)(2)(B).
Preclusion of the testimony of inmate Maurice Stone is the appropriate remedy here for Plaintiff's eleventh hour revelation of this witness after the close of discovery and after ignoring his obligation under this Court's Scheduling Order to make self-executing disclosures. It should be noted that this remedy does not put Plaintiff out of Court; it merely keeps him from benefiting from his skirting of his obligations to this Court and to the defense.
Plaintiff should not be heard to argue that the Court should delay the fast-approaching trial of this matter, re-open the discovery period, and permit this inmate witness to be deposed by the defense. This case has progressed too far (with trial only ten days away) to be sent back to discovery at this late date. Moreover, under Rule 16(b), a scheduling order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). "In order to establish good cause, the [party seeking modification] should demonstrate that a more diligent pursuit of discovery was impossible."Comuso v. Nat'l Railroad Passenger Corp., 1998 WL 800342, *1 (E.D. Pa. 1998) (emphasis added). Plaintiff has not, and cannot make a showing that it was impossible for him to have made a self-executing disclosure during the discovery period alerting the defense to this witness who Plaintiff says "saw everything." Plaintiff should be precluded from presenting the testimony of inmate Maurice Stone.
ORDER
AND NOW, this __ day of _____________, 2004, upon consideration of the Defendant Officer McCann's Motion in Limine to Preclude Expert Testimony and All Other Evidence of Plaintiff's Recent Medical Treatment, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff is hereby precluded from offering into evidence any expert testimony or other evidence of any kind relating to medical treatment received by Plaintiff after the close of discovery.
MOTION IN LIMINE OF DEFENDANT OFFICER McCANN TO PRECLUDE EXPERT TESTIMONY AND ALL OTHER EVIDENCE OF PLAINTIFF'S RECENT MEDICAL TREATMENT
Defendant Officer McCann ("Officer McCann"), through his undersigned counsel, hereby moves, pursuant to this Court's Scheduling Order of January 15, 2004 for an Order precluding the expert testimony and all other evidence of Plaintiff's medical treatment after the close of discovery. The arguments and authorities supporting this motion are set forth in the accompanying memorandum of law and its exhibit, which Officer McCann incorporates herein by reference.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT OFFICER McCANN'S MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY AND ALL OTHER EVIDENCE OF PLAINTIFF'S RECENT MEDICAL TREATMENTAt his deposition on January 13, 2004, Plaintiff was questioned extensively about the fact that he had not sought and received medical treatment for his supposedly injured shoulder during the period of nearly two years between the incident at issue and his deposition — over half of which he spent in jail with free health care available to him. Plaintiff's Deposition (Exhibit A) at 117-125. Sensing that his answers to this questioning posed a problem to his case, Plaintiff blurted out this unsolicited comment when asked what documentation he had of his supposed injury:
If I have to go to the doctor for the intent of this case, then I'll have to borrow money to go to the doctor from my folks. If that's what I'll have to do, that's what I'll have to do.
Exhibit A at 124.
True to his word, but far too late, Plaintiff informed the Court and the defense in his response to Officer McCann's summary judgment motion that he "got [his] shoulder X-rayed on 2/09/04" — well after the close of discovery. Response to Officer McCann's Summary Judgment Motion at pg. 1. He also stated in that response that he planned in the future to "see my chiropractor about my shoulder[.]" Id. Curiously, Plaintiff did not disclose the results of his X-ray to the defense or the Court.
Thereafter, on February 23, 2004, Plaintiff informed the undersigned counsel by telephone that he is now being treated by doctors — who have "given him a letter" about his supposed injuries. Again, as with the X-ray report, this belated letter has not been provided to the Court or counsel as of the writing of this motion.
"The purpose of modern discovery rules is to allow the parties to obtain the fullest possible knowledge of the issues and facts before trial." Crossley v. Iroquois Foundry Co., 1992 WL 114956, *2 (E.D. Pa. May 18, 1992). Plaintiff is clearly attempting to thwart that purpose here through his belated effort to substantiate his supposed physical injury after the close of discovery.
Having ignored this Court's deadline for providing expert reports and his obligation to do so under Rule 26 of the Federal Rules of Civil Procedure, Plaintiff clearly should not be permitted to present any expert medical testimony at trial. Under Rule 37(c)(1), "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial . . . any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). Plaintiff's conduct merits the sanction of precluding any expert medical testimony. Plaintiff has demonstrated a pattern of flagrant disregard for his obligations to the Court and the defendants in this litigation by: (a) failing to respond to the defendants' Rule 12 motions, (b) failing to make required self-executing disclosures as ordered by the Court and required by rule, (c) failing to appear at the Rule 16 conference for this matter (causing the Court to have to track down the Plaintiff and conduct the conference by phone), and (d) ignoring the Court's deadline for expert reports, only to attempt now to present medical evidence.
Likewise, Plaintiff should not be permitted to ambush the defense with medical evidence, expert or not, that was not disclosed before the close of discovery.
Finally, Plaintiff should not be heard to argue that the Court should delay the fast-approaching trial of this matter and re-open the discovery period to permit belated expert reports or medical discovery. This case has progressed too far (with trial only ten days away) to be sent back to discovery at this late date. Moreover, under Rule 16(b), a scheduling order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). "In order to establish good cause, the [party seeking modification] should demonstrate that a more diligent pursuit of discovery was impossible." Comuso v. Nat'l Railroad Passenger Corp., 1998 WL 800342, *1 (E.D. Pa. 1998) (emphasis added). Plaintiff has not, and cannot make a showing that it was impossible for him to avoid his delay here. Plaintiff admits in his response to Officer McCann's summary judgment motion that Medicare benefits were available to him in January of 2004 and that he had received treatment for other unrelated injuries, paid for by Medicare, in 2003. Plaintiff chose to wait until after the close of discovery to seek treatment. This is simply a desperate but late effort by the Plaintiff to plug a hole in his case that became evident to him at his deposition.
Plaintiff should be precluded from presenting expert testimony and from presenting all other evidence of medical treatment after the close of discovery.
ORDER
AND NOW, this __ day of _____________, 2004, upon consideration of the Defendant Officer McCann's Motion in Limine to Preclude Expert Testimony and All Other Evidence of Plaintiff's Recent Medical Treatment, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff is hereby precluded from offering into evidence any expert testimony or other evidence of any kind relating to medical treatment received by Plaintiff after the close of discovery.
MOTION IN LIMINE OF DEFENDANT OFFICER McCANN TO PRECLUDE EXPERT TESTIMONY AND ALL OTHER EVIDENCE OF PLAINTIFF'S RECENT MEDICAL TREATMENT
Defendant Officer McCann ("Officer McCann"), through his undersigned counsel, hereby moves, pursuant to this Court's Scheduling Order of January 15, 2004 for an Order precluding the expert testimony and all other evidence of Plaintiff's medical treatment after the close of discovery. The arguments and authorities supporting this motion are set forth in the accompanying memorandum of law and its exhibit, which Officer McCann incorporates herein by reference.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT OFFICER McCANN'S MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY AND ALL OTHER EVIDENCE OF PLAINTIFF'S RECENT MEDICAL TREATMENTAt his deposition on January 13, 2004, Plaintiff was questioned extensively about the fact that he had not sought and received medical treatment for his supposedly injured shoulder during the period of nearly two years between the incident at issue and his deposition — over half of which he spent in jail with free health care available to him. Plaintiff's Deposition (Exhibit A) at 117-125. Sensing that his answers to this questioning posed a problem to his case, Plaintiff blurted out this unsolicited comment when asked what documentation he had of his supposed injury:
If I have to go to the doctor for the intent of this case, then I'll have to borrow money to go to the doctor from my folks. If that's what I'll have to do, that's what I'll have to do.
Exhibit A at 124.
True to his word, but far too late, Plaintiff informed the Court and the defense in his response to Officer McCann's summary judgment motion that he "got [his] shoulder X-rayed on 2/09/04" — well after the close of discovery. Response to Officer McCann's Summary Judgment Motion at pg. 1. He also stated in that response that he planned in the future to "see my chiropractor about my shoulder[.]" Id. Curiously, Plaintiff did not disclose the results of his X-ray to the defense or the Court.
Thereafter, on February 23, 2004, Plaintiff informed the undersigned counsel by telephone that he is now being treated by doctors — who have "given him a letter" about his supposed injuries. Again, as with the X-ray report, this belated letter has not been provided to the Court or counsel as of the writing of this motion.
"The purpose of modern discovery rules is to allow the parties to obtain the fullest possible knowledge of the issues and facts before trial." Crossley v. Iroquois Foundry Co., 1992 WL 114956, *2 (E.D. Pa. May 18, 1992). Plaintiff is clearly attempting to thwart that purpose here through his belated effort to substantiate his supposed physical injury after the close of discovery.
Having ignored this Court's deadline for providing expert reports and his obligation to do so under Rule 26 of the Federal Rules of Civil Procedure, Plaintiff clearly should not be permitted to present any expert medical testimony at trial. Under Rule 37(c)(1), "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial . . . any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). Plaintiff's conduct merits the sanction of precluding any expert medical testimony. Plaintiff has demonstrated a pattern of flagrant disregard for his obligations to the Court and the defendants in this litigation by: (a) failing to respond to the defendants' Rule 12 motions, (b) failing to make required self-executing disclosures as ordered by the Court and required by rule, (c) failing to appear at the Rule 16 conference for this matter (causing the Court to have to track down the Plaintiff and conduct the conference by phone), and (d) ignoring the Court's deadline for expert reports, only to attempt now to present medical evidence.
Likewise, Plaintiff should not be permitted to ambush the defense with medical evidence, expert or not, that was not disclosed before the close of discovery.
Finally, Plaintiff should not be heard to argue that the Court should delay the fast-approaching trial of this matter and re-open the discovery period to permit belated expert reports or medical discovery. This case has progressed too far (with trial only ten days away) to be sent back to discovery at this late date. Moreover, under Rule 16(b), a scheduling order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). "In order to establish good cause, the [party seeking modification] should demonstrate that a more diligent pursuit of discovery was impossible." Comuso v. Nat'l Railroad Passenger Corp., 1998 WL 800342, *1 (E.D. Pa. 1998) (emphasis added). Plaintiff has not, and cannot make a showing that it was impossible for him to avoid his delay here. Plaintiff admits in his response to Officer McCann's summary judgment motion that Medicare benefits were available to him in January of 2004 and that he had received treatment for other unrelated injuries, paid for by Medicare, in 2003. Plaintiff chose to wait until after the close of discovery to seek treatment. This is simply a desperate but late effort by the Plaintiff to plug a hole in his case that became evident to him at his deposition.
Plaintiff should be precluded from presenting expert testimony and from presenting all other evidence of medical treatment after the close of discovery.
ORDER
AND NOW, this ___ day of ___, 2004, upon consideration of the Defendant Officer McCann's Motion in Limine to Preclude Introduction of Plaintiff's Letter of March 22, 2002 into Evidence, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff is hereby precluded from introducing his letter of March 22, 2002 to Curtis Camer into evidence.
MOTION IN LIMINE OF DEFENDANT OFFICER McCANN TO PRECLUDE INTRODUCTION OF PLAINTIFF'S MARCH 22, 2002 LETTER INTO EVIDENCE
Defendant Officer McCann ("Officer McCann"), through his undersigned counsel, hereby moves, pursuant to this Court's Scheduling Order of January 15, 2004 for an Order precluding the introduction into evidence of Plaintiff's March 22, 2002 letter to Curtis Camer. The arguments and authorities supporting this motion are set forth in the accompanying memorandum of law and its exhibits, which Officer McCann incorporates herein by reference.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT OFFICER McCANN'S MOTION IN LIMINE TO PRECLUDE INTRODUCTION OF PLAINTIFF'S MARCH 22, 2002 LETTER INTO EVIDENCEWith only days left in the discovery period — and after testifying at deposition that he had no documents other than his complaint to substantiate his claim that Defendant Officer McCann ("Officer McCann") had injured his shoulder — Plaintiff Frederic J. Powell ("Plaintiff) surprisingly produced a letter that he claims he wrote to a friend on the date of the incident at issue. A copy of that letter is attached hereto as Exhibit A. Plaintiff intends to introduce this self-serving document as evidence at trial to substantiate his account of the events at issue. He should not be permitted to do so.
There is considerable reason to believe that this document was recently fabricated by Plaintiff — not written on the date of the incident as claimed. Any limited probative value that this letter might have is substantially outweighed by the dangers of unfair prejudice and of misleading the jury raised by the suspect origins of this letter. Under Rule 403 of the Federal Rules of Evidence, Plaintiff should be precluded from introducing this letter into evidence.
"It is clearly established that the district court has broad discretion under Rule 403 to exclude relevant evidence which it determines to be confusing, misleading, or unfairly prejudicial to the opposing party."Nat'l Freight v. S.E. Pa. Transp. Auth., 698 F. Supp. 74, 77 (E.D. Pa.),aff'd, 872 F.2d 413 (3d Cir. 1989). Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Here, the probative value of Plaintiff's March 22, 2002 letter is minimal at best. The letter merely recounts the same version of the events that Plaintiff will recite during his trial testimony. The letter, therefore, represents cumulative evidence of little or no probative value to the jury. On this basis alone, the letter should be excluded from evidence pursuant to Rule 403.
More importantly, the dangers of unfair prejudice and of misleading the jury dwarf any limited probative value this letter may have. The suspicious circumstances surrounding Plaintiff's production of this letter, the very appearance of the letter, and Plaintiffs history of fabricating evidence in support of claims converge to raise serious questions about the letter's origin.
At his own deposition, Plaintiff testified that he had no written documentation of his supposed injury other than his complaint. Plaintiff's Deposition (Exhibit B) at 123-24. Thereafter, in the final days of discovery, Plaintiff produced the letter to the undersigned counsel just prior to the deposition of Correctional Officer Kathleen Brighter, the officer in charge of the commissary at the Montgomery County Correctional Facility ("MCCF"). When Plaintiff first showed the letter to the undersigned counsel, he pulled it from a folder that also contained handwritten notes written on what appeared to be the same type of paper with the same type of ink as was used for the letter Plaintiff claimed to have written nearly a year earlier.
During the course of Officer Brighter's deposition, the undersigned counsel showed her the original letter, and she testified that the letter was written on a type of paper (white 8 ½" by 11" lined legal pad paper) not available to inmates at the commissary using a pen (black ink) not available to inmates at the commissary. Deposition of CO Brighter (Exhibit C hereto) at 5-8. Officer Brighter further testified that inmates are not allowed to keep writing paper and pens in their cells that were not issued by the commissary. Id. at 8. In addition, inmates are prohibited from keeping paper and pens in their cells in the M-2 unit where Plaintiff was housed immediately after the incident in question.
During Officer Brighter's deposition, Plaintiff quickly offered a vague explanation for the discrepancies noted by Officer Brighter. He claimed that he borrowed the paper from another inmate when he was let out of his cell for a shower, and that he did not know how the other inmate came to have the paper. Exhibit C at 8-9. Then, in response to Officer McCann's motion for leave to file a reply brief, Plaintiff offered a more detailed, but inconsistent and implausible explanation. Plaintiff claimed that a guard allowed him to borrow a black pen in a section of the prison where inmates may not keep pens in their cells. "Answer to Officer McCann's Leave to File Reply Brief" (Exhibit D) at ¶ 3. He also claimed to know how the other inmate came to have contraband paper in the M-2 housing unit, saying the paper had been "was sent to him by his mother and father." Id. MCCF, however, opens all incoming inmate mail and would have confiscated blank paper sent by mail to inmates as contraband.
Further, Plaintiff has a history of two prior convictions for fabricating evidence in support of claims — with past convictions for insurance fraud (see Sentence Sheet and Criminal Complaint at Exhibit E) and forgery (see Sentence Sheet and Criminal Complaint at Exhibit F). This history, combined with the suspicious circumstances of the letter's production, the implausible physical appearance of the letter, and Plaintiff's strained explanation for the letter all point to the conclusion that Plaintiff is attempting to mislead the jury here.
Were this Court to admit this letter into evidence, the result would be a wasteful trial within a trial focused upon the true origin of this letter — a piece of evidence that adds nothing because it is merely cumulative of the Plaintiff's testimony. Officer McCann would be forced to present additional witnesses to explain the implausibility of Plaintiff's claim to have written the letter on the day of the incident — all potentially distracting the jury's attention from its proper focus on Plaintiff's excessive force claim and Officer McCann's defenses thereto. Plaintiff's letter should be precluded from evidence under Rule 403 to prevent such a distracting, time-consuming and wasteful side-show.
Plaintiffs supposed March 22, 2002 letter to Curtis Camer should be precluded from evidence.
MEMORANDUM AND ORDER
Plaintiff Frederic Powell brings this suit under 42 U.S.C. § 1983 alleging violations of his constitutional rights arising from his arrest by the Lower Moreland Township Police Department and subsequent incarceration at the Montgomery County Correctional Facility ("MCCF"). After this Court granted several of the original defendants' motions to dismiss on December 15, 2003, only four defendants remained in the case: Lower Moreland Township Board of Commissioners, Kurt Mayer, President of the Lower Moreland Township Board of Commissioners, Detective Rick Small, and Police Officer McCann. Presently before this Court are each of the Defendants' motions for summary judgment. For the following reasons, Defendants' motions for summary judgment are granted.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c) (1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24(1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for him at trial. Anderson, 477 U.S. at 248. In order to meet this burden, the opposing party must point to specific, affirmative evidence in the record and not simply rely on mere allegations, conclusory or vague statements, or general denials in the pleadings. Celotex, 477 U.S. at 324. In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
II. DISCUSSION
Because the factual scenarios giving rise to Plaintiff's claims against each of the Defendants in this case are distinct, I will describe the facts and analysis relating to each claim separately.
A. First Amendment Claim Against Detective Rick Small
1. Factual Background
Plaintiff claims that Detective Rick Small of the Lower Moreland Township Police Department ("Police Department") violated his First Amendment rights by contacting both MCCF and the Mayview Hospital ("Mayview") to prevent Plaintiff from corresponding with the Police Department and Lower Moreland Township ("Township").
Plaintiffs penchant for deluging both the Police Department and the Township with numerous phone calls, letters and visits is abundantly clear from Plaintiff's deposition and the record before this Court. (Powell Dep. at 42, 52-53, 56-57; id. at 48 (stating that "[t]hat's my nature . . . [y]ou know I just keep hammering at things until it's over").) These communications stem from Plaintiff's belief that the Police Department failed to take his criminal complaints seriously, including various criminal charges Plaintiff believed should have been brought against Mr. Balina, a man who is co-habitating with Plaintiffs wife. ( Id. at 40-41, 74.) Although Plaintiff often identified himself as the source of these communications, he has also called the Police Department under the guise of aliases, including impersonating a police captain from the Fifteenth District in Philadelphia and an attorney named Robert Azhead. ( Id. at 57-58.)
Plaintiff's incessant communications have resulted in numerous criminal charges for harassment and stalking. (Def.'s Mot. for Summ. J., Ex. E (Criminal Docket Sheet), Ex. J (Criminal Complaint).) On October 11, 1997, Plaintiff was arrested in connection with threats that he made to the Chief of the Police Department and charged with weapons offenses, terroristic threats, stalking and harassment. ( Id.; Ex. H.) In November 1997, Plaintiff was released on bail on the condition that he have no contact with any member of the Police Department or other Township officials. (Powell Dep. at 77; Def.'s Mot. for Summ. J., Ex. H.) Despite this court order, Plaintiff's communications continued unabated and in July 1998, Plaintiff signed a statement prepared by his probation officer Louise Foster stating that:
I have discussed with Investigator Louise Foster of Montgomery County Probation and Parole that I will not contact under any circumstances other than an emergency the Lower Moreland Township Police Department. I will not make or even attempt to initiate any form of statement that could be taken as a form of harassment.
(Def.'s Mot. for Summ. J., Ex. E; Powell Dep. at 39). Again, however, Plaintiff's communications persisted. On February 13, 2001, the Police Department filed a criminal complaint against Plaintiff alleging fourteen counts of harassment and stalking and fourteen counts of harassment by communication. (Def.'s Mot. for Summ. J., Ex. J.) The complaint detailed numerous instances in which Plaintiff called various Township employees. ( Id.) On March 15 2002, Plaintiff pled guilty to these charges. (Powell Dep. at 61; Def.'s Mot. for Summ. J., Ex. K (Sentence)). As a condition of his sentence, Plaintiff was directed not to have any contact with the Police Department without legitimate reason. (Powell Dep. at 64-65; Def.'s Mot. for Summ. J., Ex. K.)
Plaintiff served a portion of his sentence at MCCF but was transferred to Mayview Hospital at some point during his incarceration due to his mental illness. (Powell Dep. at 75-76.) While at these facilities, Plaintiff continued to send mail to the Township, which occupies the same building as the Police Department. ( Id. at 45, 69, 73.) The letters to the Township concerned Plaintiff's belief that the Police Department was not taking his criminal complaints seriously. ( Id. at 74.) Furthermore, many of the letters sent to the Township directed the recipient to distribute the contents to the Police Department as well. ( Id. at 82-83 (acknowledging that Plaintiff sent several letters to Lower Moreland Township addressed to "Ms. Alison Rudolf Winter plus bad cops and bad detectives and former bad Chief Amabile, HVA Township Manager attachments for you to distribute").) Defendant Detective Rick Small testified in his deposition that he called both MCCF and Mayview due to both the amount and content of letters that were coming to the Township. (Small Dep. at 5-6.) The record does not contain any information concerning the content of those telephone calls. According to Plaintiff, however, Plaintiffs mail to the Township was stopped in response to Defendant's actions. ( Id. at 69, 73.)
Plaintiff stated that he found out that his mail had been stopped through conversations with a social worker at MCCF and a nurse at Mayview. (Powell Dep. at 67, 72.) Furthermore, Plaintiff claims that when he was transferred to Mayview the letters that he had attempted to send to the Township appeared in his personal bag. ( Id. at 69.)
2. Legal Analysis
Plaintiff claims that Detective Rick Small violated his First Amendment rights by contacting both MCCF and Mayview to stop Plaintiff from sending correspondence to the Police Department and the Township. Defendant Small moves for summary judgment on the grounds of qualified immunity. For the reasons set forth below, Defendant is entitled to summary judgment on Plaintiffs First Amendment claim.
The doctrine of qualified immunity will shield a government official from liability for civil damages if a reasonable person in the defendant's position could have believed that his or her actions were proper based on existing law and the information actually possessed. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Good v. Dauphin Cty. Soc. Servs., 891 F.2d 1087, 1092 (3d Cir. 1989). The doctrine of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established constitutional right. Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact exists as to the objective reasonableness of the defendant's belief in the lawfulness of his actions. Id.
In the instant case, Defendant Small is entitled to immunity if a reasonable officer could have believed that his conduct of calling MCCF and Mayview and telling them to prevent Plaintiff's correspondence with the Township and the Police Department was lawful in light of clearly established law and the information the officer possessed. First of all, Defendant, a police officer employed by the Police Department, was not in a position of authority at either MCCF or Mayview and did not possess control over prisoner's mailing privileges. Furthermore, to whatever extent Defendant's actions contributed to the eventual curtailment of Plaintiff's mailing privileges, if that in fact occurred, Plaintiff has failed to meet his initial burden of demonstrating that he possessed a clearly established constitutional right to continue to send harassing communications to the Police Department and the Township or that Defendant's actions violated that right.
While prisoners retain First Amendment rights, they do not have an unfettered right to send outgoing correspondence. Procunier v. Martinez, 416 U.S. 396, 413 (1974). Prisons may regulate outgoing mail from inmates if the regulations further "an important or substantial governmental interest unrelated to the suppression of expression" and the limitation is "no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. at 413; Castle v. Clymer, 15 F. Supp.2d 640, 661 (E.D. Pa. 1998). In this case, MCCF and Mayview's restriction of Plaintiff's mailing privileges was limited to two recipients who were the victims of the harassment that caused Plaintiff's incarceration in the first place. Defendant's conduct in calling MCCF and Mayview to inform them of his harassing letters did not violate Plaintiff's clearly established constitutional rights and MCCF was within its power to curtail Plaintiff's mailing privileges on the basis of information received from Defendant.
Furthermore, Defendant's actions were based upon a valid court order forbidding Plaintiff from further contact with the Police Department. The court order in effect during Plaintiff's incarceration technically only forbid Plaintiff from contacting the Police Department. (Def.'s Mot. for Summ. J., Ex. K.) However, the underlying complaints that resulted in the court order involved calls to the Township. Furthermore, the Township and the Police Department are located in the same building and the letters sent to the Township involved Plaintiff's criminal complaints and directed their recipients to distribute such correspondence to the Police Department. As such, it would have been reasonable for Detective Small to believe that calling MCCF and Mayview and telling them to stop Plaintiff's correspondence to both the Township and the Department was in accordance with the court order and was not a violation of Plaintiff's clearly established rights. Accordingly, Defendant McCann's motion for summary judgment is granted.
B. Excessive Force Claim Against Defendant Officer McCann
1. Factual Background
Plaintiff asserts that Defendant McCann violated his Eighth Amendment rights by forcibly bending Plaintiff's arm behind his back while transferring him to a mental health unit at MCCF.
On March 22, 2002, Officer McCann distributed shaving razors to inmates housed in the M-4 unit of MCCF, a cell block designated for inmates with mental health problems. (Powell Dep. at 101.) When Officer McCann attempted to retrieve the razors, he discovered that one was missing. ( Id. at 102.) In response, Officer McCann locked each inmate into his cell in order to conduct a thorough search of the entire housing unit. ( Id. at 106.) Plaintiff admits in his deposition that Officer McCann's actions angered him and that, as a result, he started "shouting" and using profanity and "heated words." ( Id. at 106-08.) Officer McCann summoned the assistance of another officer and received permission to transfer Plaintiff to another mental health unit around the corner from M-4. (McCann Aff. ¶ 10.) Plaintiff recounts that during the transfer, Officer McCann took Plaintiff's arm behind his back and "whipped it up as far as he could and held it there all the way from M-4 to the other cell block area." (Powell Dep. at 113.) Although Officer McCann asserts that he did not employ such force, (McCann Aff. ¶ 13), for purposes of the instant motion, I will credit Plaintiff's version of the events.
2. Legal Analysis
Plaintiff brings his claim pursuant to 42 U.S.C. § 1983, which requires him to demonstrate that: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state law. Gorman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Defendant does not dispute that he was acting under color of state law. The issue, therefore, is whether the force used by Defendant constitutes a violation of Plaintiff's Eighth Amendment rights.
Plaintiff was a pretrial detainee at the time of the alleged incident. Although an excessive force claim by a pretrial detainee held in a county prison is governed by the Fourteenth Amendment, courts apply the standards articulated under the Eighth Amendment jurisprudence. Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000) (holding that Eighth Amendment standards apply because "it is impractical to draw a line between convicted prisoners and pretrial detainees for the purpose of maintaining jail security").
To establish an Eighth Amendment violation, Plaintiff must establish both a subjective and an objective component. Hudson v. McMillian, 503 U.S. 1, 8 (1992); Smith v. Hulick, No. 97-801, 1998 WL 84019, at *2, 1998 U.S. Dist. LEXIS 2006, at *7 (E.D. Pa. Feb. 25, 1998). In considering the subjective component of an excessive force claim under the Eighth Amendment, the central question is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. Courts look to several factors in making this determination, including: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of the injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of the response. Id. at 8 ( quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). The objective prong is satisfied if the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation. Hudson, 503 U.S. at 8. As the Supreme Court has instructed, not "every malevolent touch by a prison guard gives rise to a federal action" nor does "every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers." Id. at 9. In sum, "de minimis uses of physical force, provided that the use offeree is not of a sort `repugnant to the conscience of mankind,' do not rise to the level of a constitutional infringement." Id. at 9-10. As the analysis below demonstrates, even taking Plaintiffs version of the events as true and drawing all inferences in his favor, this incident does not rise to the level of an Eighth Amendment violation.
a. Subjective Component
Applying the requisite factors, this Court finds that the undisputed facts of this case do not support a reliable inference that Officer McCann possessed a malicious or sadistic state of mind. First, the amount of force used was reasonable given the threat Plaintiffs behavior posed to the safety of staff and inmates. Plaintiff, a man with a history of mental health problems and weighing over three hundred pounds, admitted in his deposition that he was angered by being locked in his cell while Officer McCann attempted to locate the missing razor and that he was "shouting," using "heated words" and profanity. (Powell Dep. at 96, 108.) Furthermore, Plaintiff acknowledged that he had been diagnosed with a mental disorder and was being housed in the medical unit of the prison, an environment in which both an unaccounted for razor and the disruptive outburst of an inmate could pose a serious safety risk to both inmates and staff. ( Id. at 87, 97.) In response to Plaintiff's disruption, Officer McCann and Officer Dombrowski received permission to move Mm to a more secure medical unit. The process of removing a disorderly and physically imposing prisoner from the confines of a cell and transferring him to another unit creates a reasonable perception of danger. Second, the amount of force Defendant employed cannot be considered disproportionate under the circumstances. According to Plaintiff, while Officer Dombrowski held his right arm, Officer McCann bent his left arm up behind his back. ( Id. at 109, 112.) Although Plaintiff asserts that Officer McCann's actions caused him pain, the arm-hold only lasted a short time as all parties agree that Plaintiff was moved to another unit on the same floor and "just around the corner." ( Id. at 114.) Third, while Plaintiff has presented no medical evidence from which this Court can determine the extent of his injuries ( see id. at 117, 121 (claiming that Plaintiff suffers "constant pain" in his upper shoulder "every minute of every day" as a result of this incident)), Plaintiff stated that at the time of his deposition he had never received any treatment for this injury ( id. at 120-22.). In fact, Plaintiff stated that the only time he even sought medical treatment for his injury was sometime soon after the incident, but he could not provide any specifics regarding his request for treatment, such as when it occurred or with whom he spoke. ( Id. at 118-19.) Thus, Defendant is entitled to summary judgment because the undisputed facts, as recounted by Plaintiff in his deposition, demonstrate that Plaintiff has failed to provide any evidence that Officer McCann was acting maliciously and sadistically for the purpose of causing harm, rather than in a good faith effort to restore discipline. See also Acosta v. McGrady, No. 96-2874, 1999 WL 158471, at *9, 1999 U.S. Dist. LEXIS 3191 (E.D. Pa. Mar. 22, 1999) (noting that plaintiff has failed to demonstrate any evidence of defendant's culpable state of mind); Smith v. Hulick, No. 97-801, 1998 WL 84019, at *3, 1998 U.S. Dist. LEXIS 2006 (E.D. Pa. Feb. 25, 1998) (granting summary judgment after applying Whitley factors because plaintiff failed to demonstrate that defendant was acting maliciously and sadistically for purpose of causing harm).
b. Objective Component
The events described by the Plaintiff also do not meet the objective component of an Eighth Amendment violation because they involved a de minimis use of force which cannot be deemed "repugnant to the conscience of mankind." According to Plaintiff, Officer McCann forcibly pulled his arm behind his back causing pain to his shoulder. The force was applied only in a single instance for a short period of time while moving Plaintiff, who was admittedly agitated and yelling, to another mental health housing unit. Furthermore, at the time of his deposition, Plaintiff was unable to document any injury to his shoulder and had not received any medical treatment in the nearly two-year period between this incident and his deposition. As the Third Circuit recognized in Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000), while "the absence of resulting injury is not a per se reason for dismissing a claim . . . [t]his is not to say . . . that the degree of resulting injury is not highly relevant to the determination of the reasonableness of the force used." Accordingly, this Court concludes that the force applied in this instance is de minimis as a matter of law. See Robinson v. Link, No. 92-4877, 1994 WL 463400, 1994 U.S. Dist. LEXIS 11950 (E.D. Pa. Aug. 25, 1994) (allegation that prisoner was handcuffed, dragged along a corridor, and hit in the back found to be de minimis); Brown v. Vaughn, No. 91-2911, 1992 WL 75008, 1992 U.S. Dist. LEXIS 4221 (E.D. Pa. Mar. 31, 1992) (allegation that guard struck inmate in chest and spit on him found de minimis); Colon v. Wert, No. 96-4494, 1997 WL 137171, 1997 U.S. Dist. LEXIS 3413 (E.D. Pa. Mar. 21, 1997) (allegation that corrections officer slammed a cell door into the prisoner's chest, aggravating a pre-existing back and neck injury, found de minimis).
In Plaintiffs Response to Defendant's Motion for Summary Judgment, Plaintiff asserts that he "just got his shoulder X-rayed on 2/09/04." (Pl's Resp. at 1.) Plaintiff does not provide a report from this claimed x-ray. Moreover, pursuant to this Court's scheduling order dated January 15, 2004, discovery and expert reports were to be completed by January 30, 2004.
As Plaintiff has failed to satisfy either the subjective or objective components of his Eighth Amendment claim, Defendant McCann's motion for summary judgment is granted.
C. Claims Against Kurt Mayer and the Lower Moreland Board of Commissioners
Although Plaintiff names both Kurt Mayer and the Lower Moreland Board of Supervisors as Defendants in this case, he does not make any allegations against them in his complaint. In response to Defendants' motion for summary judgment, Plaintiff fails to add any additional information regarding his claims except to assert that "Lower Moreland Board of Supervisors and Kurt Mayer cannot be dismissed since they are the ultimate employers of the police department." (Pl's Resp. at 6.) Contrary to Plaintiffs assertions, respondeat superior is not a basis for liability under § 1983. See Monell v. New York Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). Accordingly, summary judgment is granted for Defendants Kurt Mayer and the Lower Moreland Board of Supervisors.
III. CONCLUSION
In conclusion, for the reasons stated above, I grant Defendants' motions for summary judgment. An appropriate Order follows.
ORDER
AND NOW, this 25th day of February, 2004, upon consideration of Defendant Officer McCann's Motion for Summary Judgment, Plaintiff Frederic Powell's response, all replies thereto, and Defendants' Detective Rick Small, Lower Moreland Board of Commissioners, and Kurt Mayer's Motion for Summary Judgment, Plaintiff's response thereto, and for the foregoing reasons, it is hereby ORDERED that:
1. Defendant Officer McCann's Motion for Summary Judgment (Document No. 23) is GRANTED.
2. Defendant Detective Rick Small, Lower Moreland Board of Commissioners and Kurt Mayer's Motion for Summary Judgment (Document No. 24) is GRANTED.
3. Defendant Officer McCann's Motion for Leave to File a Reply (Document No. 27) is GRANTED.
4. Plaintiff's Motion to File a Reply (Document No. 28) is GRANTED.
5. Judgment is entered in favor of Defendants Officer McCann, Detective Rick Small, Lower Moreland Board of Commissioners, and Kurt Mayer and against Plaintiff Frederic Powell.
6. The Clerk of Court is directed to close this case.