Jackson v. Goetz

Full title: MARLON JACKSON, SAUNDRA COLE, Plaintiffs, v. CHRISTOPHER GOETZ, SCOTT…

Court: United States District Court, W.D. Pennsylvania, Pittsburgh.

Date published: Nov 22, 2021

2:19-CV-00258-WSS (W.D. Pa. Nov. 22, 2021)

Opinion

2:19-CV-00258-WSS

11-22-2021

MARLON JACKSON, SAUNDRA COLE, Plaintiffs, v. CHRISTOPHER GOETZ, SCOTT BROWN, ROBERT BERBERICH, Defendants,

Cynthia Reed Eddy Chief United States Magistrate Judge

REPORT AND RECOMMENDATION

Cynthia Reed Eddy Chief United States Magistrate Judge

I. RECOMMENDATION

This civil action was initiated by Plaintiffs Marlon Jackson (“Plaintiff Jackson”) and Saundra Cole (“Plaintiff Cole”) against three City of Pittsburgh Police Officers Christopher Goetz (“Officer Goetz”), Scott Brown (“Officer Brown”) and Robert Berberich (“Officer Berberich”) (collectively “Defendants” or “Officers”) for alleged civil rights violations.

Before the Court for consideration is Defendants' motion for summary judgment (ECF No. 68). The motion is fully briefed and ripe for consideration. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state law claims under 28 U.S.C. § 1367.

For the following reasons, it is respectfully recommended that Defendants' motion for summary judgment be granted in part and denied in part. It is specifically recommended that the motion be granted with respect to the following claims:

• Plaintiff Jackson's First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against all Defendants related to his arrest and prosecution.

It is specifically recommended that Defendants' motion be denied with respect to the following claims:

• Plaintiff Jackson's Fourth Amendment unlawful seizure claim pursuant to 42 U.S.C. § 1983 against all Defendants;

• Plaintiff Cole's Fourth Amendment unlawful seizure claim pursuant to 42 U.S.C. § 1983 against Defendant Goetz;

• Plaintiff Jackson's First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against all Defendants related to his alleged retaliatory seizure;

• Plaintiff Jackson's Fourth Amendment excessive force claim pursuant to 42 U.S.C. § 1983 against all Defendants; and

• Plaintiff Jackson's state law claims for assault against all Defendants and battery against Officer Brown.

II. REPORT

a. Background

On March 10, 2017, Defendant Officers Goetz, Brown and Berberich were assigned to a plainclothes unit patrolling the Hazelwood neighborhood of Pittsburgh. According to Defendants, Hazelwood was experiencing a string of robberies and violence and Defendants were investigating an abandoned property at 214 Tipton Avenue which they suspected could be used to store or package narcotics. According to Defendants, the door to 214 Tipton had been open the previous day and was presently closed. Defendant Officers Brown and Berberich exited their vehicle to investigate the building and proceeded on foot in the rear alley behind Tipton Street, while Defendant Goetz remained in the vehicle to surveil the area. Defendant Officer Goetz then observed an individual walking in the area take a large bag of marijuana from his front section and discard it at the base of a large tree. When Defendant Officer Goetz observed this, he got out of the vehicle and attempted to initiate the arrest of an individual, Devin Paige for suspected marijuana possession while that individual was walking into the front yard of 216 Tipton Street where the Plaintiffs resided. After the incident giving rise to this lawsuit, it was determined that Devin Paige was Plaintiff Jackson's cousin. Defendant Officer Goetz entered the front yard of 216 Tipton Street and drew his TASER to make the arrest.

While Defendant Officer Goetz was making this arrest, Plaintiff Jackson noticed what was happening in his front yard and exited the front door of his home and stood on the front porch of his residence. Mr. Jackson put on a coat over his hooded sweatshirt before exiting the front door, as it was cold outside. Around that same time, Defendant Officers Brown and Berberich heard Defendant Officer Goetz in the process of making an arrest and made their way to the front yard of Plaintiff Jackson's residence. Defendants maintain that Plaintiff Jackson was approximately five feet away from where the individual was being arrested. Defendants also maintain that they did not know Plaintiff Jackson's identity until after the incident, and Plaintiff Jackson knew the Defendants were police officers effecting an arrest of Mr. Paige.

What happens next is in dispute. Plaintiff Jackson alleges that upon exiting his house and standing on the porch with his hands in the front pocket of his hooded sweatshirt, he began to question the officers and asked them why they were on his property. Defendants maintain that when Plaintiff Jackson appeared on the front porch, Plaintiff Jackson was screaming at the Officers and made statements like “what the f**k are you doing on my property” and “get the f**k off my property.”

While Plaintiff Jackson alleges that he received no answer from the Officers and became more agitated and raised his voice, Defendants maintain that Defendant Officer Brown told Plaintiff Jackson to “just chill out, we'll be in and out of here [in] a few minutes. Can you please calm down[.]” (ECF No. 70- 22 p. 26). Additionally, Defendants assert that Officer Goetz claims that he overheard Officer Brown's attempts to de-escalate the situation and explained to Plaintiff Jackson that the Officers would be off his property and it was just a “weed arrest.” (ECF No. 7023 at p. 46). Plaintiff Jackson alleges that the Officers eventually responded to him but only to tell him to remove his hands from the front pocket of his sweatshirt. According to Defendants, Officers Brown and Berberich both ordered Plaintiff Jackson to remove his hands from his pockets and Plaintiff Jackson heard these commands but did not comply.

According to Plaintiff Jackson, after the Officers told him to remove his hands from his pockets, Officers Berberich and Goetz pointed their TASERs at Plaintiff Jackson and Officer Brown began moving toward Mr. Jackson who had remained on his front porch while the Officers were in the front yard with Mr. Paige.

During this time, there was a dog barking inside the house, which was heard by Plaintiff Jackson and the Officers alike. Plaintiff Jackson alleges he turned and walked toward the front door of his home to go inside and remove himself from the situation and he removed his hands from his pockets in an attempt to use his cell phone to call his mother, Plaintiff Cole, to inform her of the situation and began walking toward the front door. Plaintiff Jackson alleges that Defendants ordered him not to go inside his home, but he continued toward his front door. Defendants allege that they feared Plaintiff Jackson was going to let the barking dog out of the house because of Plaintiff Jackson's demeanor and the Officers ordered Plaintiff Jackson not to open the door but he continued to walk backwards toward the house and disobeyed all their commands.

According to Plaintiff Jackson, Officer Brown moved toward Plaintiff Jackson and as Plaintiff Jackson reached for the front door and began to open it, Defendant Officer Brown grabbed Mr. Jackson from behind by the hood of his coat and pulled him backward. Officer Brown claims that he did not display any weapons as he entered the front porch and grabbed Plaintiff Jackson to pat him down and to stop him from reaching the door. According to Defendants, Plaintiff Jackson kept one hand in his pocket and reached for the door with the other hand and let the dog out.

According to Plaintiff Jackson, after the front door opened, the dog who was inside the home ran onto the porch. The dog, King, was owned by Plaintiff Cole. Plaintiff Jackson alleges that King was in an excited state but was not acting aggressively or attempting to bite anyone. According to Defendants, the dog jumped up on Officer Brown. Officer Brown maintained his hold on Plaintiff Jackson and positioned himself behind Plaintiff Jackson in a small alcove on the porch beside the front door. Defendant Officer Brown maintains that he attempted to position himself against the wall where Plaintiff Jackson was in front so that dog would have to go in between Plaintiff Jackson and the wall.

After the dog ran outside, Officer Goetz holstered his TASER and drew his firearm. According to Officer Goetz, he put away his TASER and drew his firearm because he believed he might not be able to hit the dog with a TASER and was worried in the dog bit someone that the TASER would not release the dog's bite.

Officer Goetz shouted at Plaintiff Jackson to get control of his dog and Plaintiff Jackson attempted to give his dog verbal commands and push the dog inside with his foot but was unable to gain control of the dog. According to Plaintiff, as Officer Goetz told Plaintiff Jackson to gain control of his dog, he pointed his firearm at Plaintiff Jackson's head, which made Plaintiff Jackson fearful, and he stopped attempting to gain physical control of the dog. According to Plaintiff Jackson, Officer Goetz fired one shot at King in close proximity to Plaintiff Jackson and Officer Brown who was still positioned behind Mr. Jackson. The shot struck Officer Brown in the foot. According to Plaintiff Jackson, after the shot was fired, King fled from the porch through the front yard and across the street and Officer Goetz took aim and fired at King again when the dog was across the street from the home, striking the dog in its buttocks causing King to flinch and run away from the scene. Defendants maintain that Officer Goetz fired two rounds back-to-back and he fired a second shot because he noticed no change in the dog's behavior after the first shot. Defendants maintain that after the dog was shot, he ran from the yard and toward Tipton Street towards Glenwood Avenue and dispute that Officer Goetz fired a shot at the dog as it was running away. After the dog was shot, Plaintiff Jackson alleges he walked to the location across the street where it was shot and observed a small pool of blood.

Several minutes later, Plaintiff Cole arrived at Tipton Street, where she also resided. Plaintiff Cole instructed her son, Plaintiff Jackson to sit in her car which was still running and was parked in front of their home to calm down. After speaking to Officer Berberich, Plaintiff Cole eventually joined her son in the car. Because they believed no police officers were looking for their dog, they decided to search for King themselves. Plaintiff Cole began to drive away but was immediately stopped by a police officer who had recently arrived on the scene. Defendants maintain that Plaintiff Cole was yelling and attempted to drive away from the scene with Plaintiff Jackson while further investigations into the incident took place.

The dog returned to their home later that same day, and Plaintiff Cole sought veterinary treatment over the next several days. According to Defendants, Plaintiff Cole voluntarily gave up ownership of King months after this incident in December 2017 after the dog was found roaming the streets by animal control and taken to Humane Animal Rescue and she never claimed it.

Plaintiffs Jackson and Cole were each criminally charged following this incident. Plaintiff Jackson pleaded guilty to obstruction of justice and was given a sentence of no further penalty. Plaintiff Cole was found guilty of summary disorderly conduct following a bench trial. There is no evidence that these convictions are on appeal or have been disturbed in any way.

The following claims remain:

1) Plaintiff Jackson asserts a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against all Defendants;

2) Plaintiff Jackson asserts a Fourth Amendment excessive force claim pursuant to 42 U.S.C. § 1983 against all Defendants;

3) Plaintiff Jackson asserts a state law assault claim against all Defendants;

4) Plaintiff Jackson asserts a state law battery claim against Defendant Officer Brown;

5) Plaintiff Jackson asserts a Fourth Amendment unlawful seizure claim pursuant to 42 U.S.C. § 1983 against all Defendants; and

6) Plaintiff Cole asserts a Fourth Amendment unlawful seizure claim pursuant to 42 U.S.C. § 1983 against Defendant Goetz.

Defendants move for summary judgment on all remaining claims.

b. Standard of Review

The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.

On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor on that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citing Huston, 568 F.3d at 104).

A plaintiff may not, however, rely only on his complaint to defeat a summary judgment motion. See e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made with no evidentiary support may be disregarded. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).

c. Discussion

i. Plaintiffs Jackson and Cole's Fourth Amendment unlawful seizure claims

Plaintiff Jackson asserts that his Fourth Amendment rights were violated when he was subjected to an unlawful seizure by Officer Brown who grabbed Plaintiff Jackson, pulled him away from the entrance to his home, and held Plaintiff Jackson until Officer Brown was accidentally shot by Officer Goetz. (ECF No. 1 at ¶136-138). Plaintiff Jackson asserts that Defendant Brown had no probable cause or reasonable suspicion to seize Plaintiff Jackson. Plaintiff Jackson also asserts that all Defendants subjected him to an unlawful seizure when they ordered him not to enter his home and did not have probable cause to do so. Plaintiff Cole asserts that her Fourth Amendment rights were violated when she was subjected to an unlawful seizure when Defendant Officer Goetz shot her dog. Id. at ¶¶ 140-43.

Defendants argue that they are entitled to summary judgment on Plaintiffs' respective Fourth Amendment “unlawful seizure” claims under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) because Plaintiff Jackson pleaded guilty to Obstructing Administration of Law, 18 Pa. Stat. and Cons. Stat. Ann. § 5101 in connection with the incident. Defendants argue that Plaintiff Jackson cannot recover on any theory that would indicate that he could not have been arrested because his guilty plea indicates that his arrest was proper and based on probable cause and evidence sufficient for a conviction.¹ Defendants argue that Heck bars Plaintiff Cole's Fourth Amendment claim because Plaintiff Jackson admitted under oath that the dog he released lunged at Officer Brown's neck and face, possibly in an attempt to bite him, so any theory of liability that contradicts those facts would invalidate the basis for Plaintiff Jackson's conviction in violation of Heck.

1 Defendants focus on Plaintiff Jackson's arrest and take no position as to whether there was reasonable suspicion for them to make an investigatory stop and frisk and no recommendation on that issue will be made. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (a law enforcement officer may conduct an investigatory stop of someone if the officer possesses a reasonable suspicion based on “specific and articulable facts and . . . rational inferences [drawn] from those facts” that the person is involved in criminal activity). While in its argument for summary judgment on Plaintiff Jackson's First Amendment retaliation claim, Defendants summarily argument that officers are entitled to conduct investigatory stops to maintain the status quo, and therefore Defendants were permitted to stop Plaintiff Jackson to obtain information needed to complete Mr. Paige's arrest, such generalizations without providing the “specific and articulable facts” entitling the Officers to make a stop along with the dearth of any applicable legal authority does not entitle to Defendants to judgment as a matter of law. The moving party has the burden to show they are entitled to judgment as a matter of law, which includes showing no material issues of fact exist. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In other words, it is insufficient to make a passing reference to generalized facts in the record without an explanation of how those facts entitle the movant to summary judgment under the applicable legal standard. See LcVR 56.B.2 (“[t]he supporting memorandum must address applicable law and explain why there are no genuine issues of material fact to be tried and why the moving party is entitled to judgment as a matter of law”); Copenhaver v. Borough of Bernville, No. CIV.A. 02-8398, 2003 WL 26616224, at *2 (E.D. Pa. Jan. 10, 2003) (citing a substantially similar local rule that briefs contain citation to legal authority and nothing that “[f]ully developed legal argument, citation to legal authority, and discussion of the relevant facts aid this Court in performing its duty, and ultimately in serving the ends of justice. Any brief in opposition or any other memorandum of law that is lacking even a modicum of these elements is woefully insufficient and inexcusable.”).

Heck bars section 1983 actions which implicate the validity of an underlying criminal conviction unless said conviction has been terminated in favor of the civil rights plaintiff. Heck, 512 U.S. at 487. “Favorable termination” is required “to avoid ‘the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.' ” Bronowicz v. Allegheny Cty., 804 F.3d 338 (3d Cir. 2015) (quoting Heck, 512 U.S. at 484). In applying Heck, the Court must “carefully consider the relationship between a specific § 1983 claim and the underlying conviction or sentence” to determine if the civil rights claim collaterally attacks the underlying conviction. Wilkinson v. Dotson, 544 U.S. 74, 80-84, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).

“To succeed on a Fourth Amendment claim, a plaintiff must show that the defendant's actions constituted a ‘search' or a ‘seizure' within the meaning of the Fourth Amendment and were ‘unreasonable' under the circumstances.” Verdier v. Borough, 796 F.Supp.2d 606, 619 (E.D. Pa. 2011) (quoting Brower v. Cty. of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)).

1. Plaintiff Cole

As to Defendants' argument that they are entitled to summary judgment under Heck for Plaintiff Cole's unlawful seizure claim for shooting her dog because Plaintiff Jackson in his guilty plea admitted the dog lunged at Officer Brown possibly to bite him, Defendants cite to no authority that Heck bars section 1983 claims that would invalidate the criminal conviction of a third-party or co-plaintiff. To the contrary, “[u]nder Heck, a § 1983 action that impugns the validity of the plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings.” Gilles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005) (emphasis added). Therefore, Defendants have failed to show how Heck applies to Plaintiff Cole's unlawful seizure under the Fourth Amendment by virtue of Plaintiff Jackson's conviction and it is respectfully recommended that their motion be denied in this respect.

Defendants also argue that they are entitled to summary judgment because no unreasonable seizure occurred because she has not provided evidence that she was the owner of the dog, the dog was returned to her the same day and she relinquished ownership of the dog months later. (ECF No. 69 at 20). To be clear, Defendants do not argue that the use of force against the dog was reasonable.² In other words, Defendants simply argue that no “seizure” occurred. As to Defendants' argument that Plaintiff Cole provided no evidence proving she the dog's owner, she testified that she owned the dog and because the court views the facts in the light most favorable to the non-moving party, this argument is rejected. As to Defendants' argument that because Officer Goetz did not kill the dog, no seizure occurred, they fail to cite to any caselaw requiring that a pet be killed when shot by an officer for a seizure to occur. To the contrary, under the Fourth Amendment, a seizure of one's personal property occurs “when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). While the pet dog did not die as a result of Defendant Officer Goetz's shots, the record shows that the dog was substantially injured and required veterinary intervention for its wounds which can be considered a meaningful interference with Plaintiff Cole's possessory interest in her pet dog. See Pettit v. New Jersey, No. CIV. A. 09-CV-3735 N, 2011 WL 1325614, at *5 (D.N.J. Mar. 30, 2011) (citing Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d Cir. 2001) and assuming without deciding that although a pet dog did not die as a result of being shot by a law enforcement officer, “the shooting and wounding of a dog by a law enforcement officer is a sufficiently meaningful interference with an owner's possessory interests in his property as to constitute a seizure.”); Fullerton v. Falls, No. 3:18-CV-3248-PGS-LHG, 2020 WL 5821033, at *3 (D.N.J. Sept. 30, 2020) (denying summary judgment on Fourth Amendment unlawful seizure claims where law enforcement officer shot two dogs, killing one and wounding another that suffered “severe injuries.”). Accordingly, Defendants' argument that no seizure occurred because the pet dog did not die from Defendant Officer Goetz shooting it is rejected.

2 Elsewhere, Defendants summarily argue that Officer Goetz “clearly explained that, ‘in fear for Officer Brown's safety, [Officer] Goetz fired two rounds from his duty pistol at the dog.' ” (ECF No. 69 at 19). Defendants provide no legal analysis as to why this is relevant enough to grant summary judgment in their favor and no recommendation regarding the reasonableness of Defendant Officer Goetz's actions in shooting the pet dog will be made. Bletz v. Corrie, 974 F.3d 306, 309 (3d Cir. 2020) (addressing the reasonableness standard of an officer using lethal force against a pet under the Fourth Amendment). The moving party has the burden to show they are entitled to judgment as a matter of law, which includes showing no material issues of fact exist and that they are entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 323. In other words, it is insufficient to make a passing reference to certain facts in the record without an explanation of how those facts entitle the movant to summary judgment under the applicable legal standard. See LcVR 56.B.2 (“[t]he supporting memorandum must address applicable law and explain why there are no genuine issues of material fact to be tried and why the moving party is entitled to judgment as a matter of law”); Copenhaver, 2003 WL 26616224, at *2 (citing a substantially similar local rule that briefs contain citation to legal authority and nothing that “[f]ully developed legal argument, citation to legal authority, and discussion of the relevant facts aid this Court in performing its duty, and ultimately in serving the ends of justice. Any brief in opposition or any other memorandum of law that is lacking even a modicum of these elements is woefully insufficient and inexcusable.”).

Lastly, Defendants' argument that Plaintiff Cole relinquished ownership in the dog at some point following the shooting incident is not relevant in determining whether Officer Goetz committed an unreasonable seizure by shooting the dog. Accordingly, it is respectfully recommended that Defendants' motion for summary judgment be denied in this respect and Plaintiff Cole's claim for unlawful seizure under the Fourth Amendment against Defendant Officer Goetz for the shooting of her dog proceed to trial.

2. Plaintiff Jackson

As to Defendants' argument that they are entitled to summary judgment under Heck for Plaintiff Jackson's unlawful seizure claims because they had probable cause for his arrest and his arrest was proper and based on probable cause and evidence sufficient for a conviction, Defendants' argument misses the point. Plaintiff Jackson is not asserting that he was subject to an unlawful seizure based upon his arrest subsequent to the incident, but rather that he was subject to an unlawful seizure for Defendant Officer Brown restraining Plaintiff Jackson and all Defendants not allowing him to go back inside his home. (ECF No. 74 at 6-7).

Plaintiff Jackson pleaded guilty to Obstructing Administration of Law under Pennsylvania law which provides:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

18 Pa. Stat. and Consol. Stat. Ann. § 5101. In other words, Plaintiff Jackson pleaded guilty to intentionally obstructing, impairing or perverting the administration of law by physical interference or obstacle. Defendants characterize Plaintiff Jackson's conviction as being supported by him intentionally opening his front door to let the dog out to “attack officers, ” (ECF No. 70-5) and argue that Plaintiff Jackson's unlawful seizure claim is barred by Heck because Plaintiff Jackson agreed to incorporate the pleadings, transcripts, affidavit, arguments and supporting documents as a factual basis for his plea, and the probable cause affidavit provided that he let the dog out to “attack officers” and thereby Plaintiff Jackson admitted he let the dog out to attack officers. Defendants however do not cite to any authority that a party who agrees to incorporate the record to serve as a basis for a guilty plea accepts as true every statement, including those set forth in the probable cause affidavit. Moreover, Defendants' argument ignores that Plaintiff Jackson alleges he was subject to an unlawful seizure prior to him being arrested by being told not to go inside his home and being physically restrained by Officer Brown. The record is replete with disputed issues of fact on this point and viewing those facts in the light most favorable to Plaintiff Jackson, it is possible that Officers did not have reasonable suspicion to tell Plaintiff Jackson to not go back into his home and to detain him, which in turn led to the events of the dog escaping and Plaintiff being convicted of obstructing the administration of law. A finding that there was no reasonable suspicion for Officers to tell Plaintiff Jackson not to go into his home and to detain him would not necessarily impugn his obstruction conviction because, as Defendants argue, his conviction is based on Plaintiff Jackson letting the dog out of the house, which occurred after Plaintiff Jackson was subject to the Officers' seizure. In other words, Plaintiff Jackson does not claim that the seizure of his person produced evidence used against him to obtain his conviction, and therefore his claim does not implicate the validity of his sentence. Chambers v. Hathaway, 406 Fed.Appx. 571 (3d Cir. 2011) (matter not Heck barred where plaintiff did “not claim that the search and seizure of his person produced evidence used against him at trial, his claim does not implicate the validity of his sentence.”); Rab v. Borough of Laurel Springs, No. CIV. 08-2413 (RMB/KM, 2009 WL 5174641, at *1-3 (D.N.J. Dec. 18, 2009) (finding that Heck did not bar unlawful seizure claim where issues of fact regarding why officers stopped a motorist and whether officers had probable cause to do so, even though the plaintiff later pleaded guilty to a disorderly persons offense); Smith v. Susquehanna Univ., No. 4:14-CV-0116, 2015 WL 12791752, at *4 (M.D. Pa. Apr. 3, 2015) (Heck did not bar Fourth Amendment unreasonable search and seizure claims where plaintiff pleaded no contest to the charges and did not plead facts inconsistent with his plea). Plaintiff Jackson's unlawful seizure claims accrued at the time he was told not to go into his home by the Officers and was physically detained by Officer Brown. See Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (“[A] Fourth Amendment violation is ‘fully accomplished' by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can ‘cure the invasion of the defendant's rights which he has already suffered.' ”) (citations omitted)). Plaintiff Jackson is not contesting in support of his Fourth Amendment unlawful seizure claim that he did not let the dog out of his house and his seizure occurred prior to the fruition of any evidence supporting his obstruction conviction. Gibson v. Superintendent of N.J. Dep't of L. & Pub. Safety-Div. of State Police, 411 F.3d 427, 439 (3d Cir. 2005) (“A court in a civil action can decide that an individual was subjected to an illegal search or seizure without reaching the issue of whether the evidence found pursuant to that act should have been excluded from the criminal trial.”). Accordingly, Heck does not bar Plaintiff Jackson's claims of unlawful seizure related to Officer Brown restraining Plaintiff Jackson and all Defendants not allowing him to go back inside his home and it is respectfully recommended that Defendants' motion for summary judgment be denied in this respect.

ii. Plaintiff Jackson's First Amendment claim

Plaintiff Jackson alleges that his First Amendment rights were violated when he was retaliated against for questioning and criticizing police officers while on his front porch witnessing a person being arrested in his front yard and they ordered him not to enter his home, pointed a TASER at him, grabbed him and did not allow him to enter his home, and initiated criminal charges against him without probable cause.

Defendants argue that they are entitled to summary judgment on Plaintiff Jackson's First Amendment retaliation claim because there was probable cause to arrest and charge Plaintiff Jackson, Plaintiff Jackson was not engaged in protected speech and because Plaintiff Jackson was not arrested for his speech.

The First Amendment “prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). To state a claim for First Amendment retaliation, a plaintiff must show that they (1) engaged in protected speech or activity; (2) the government responded to that speech or activity with retaliation; and (3) that the protected speech or activity was the cause of the government's retaliation. Nieves v. Bartlett, 139 S.Ct. 1715, 1722, 204 L.Ed.2d 1 (2019).

As to Defendants' argument that Plaintiff Jackson was not engaged in protected speech because “he was arguing about the private concern of his front yard[, ]” (ECF No. 69 at 11), this argument fails. Plaintiff Jackson has offered evidence that he was opposing police presence on his property and one of the principal characteristics of our nation is the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest” and this principal distinguishes “a free nation from a police state.” City of Houston, Tex. v. Hill, 482 U.S. 451, 46263, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). This freedom encompasses “a significant amount of verbal criticism and challenge directed at police officers, ” City of Houston, Tex., 482 U.S. At 461, including “nonprovocatively voicing an objection to what one objectively feels is a highly questionable detention by a police officer.” Perez v. Vega, No. 5:18-CV-00997, 2019 WL 1045387, at *4 (E.D. Pa. Mar. 5, 2019). While there are issues of fact concerning whether Plaintiff Jackson criticized the Officers' presence on his front yard “nonprovocatively, ” that must be resolved by a jury. Accordingly, Defendants' argument is rejected.³

3 To be clear, Defendants do not argue that Plaintiff Jackson's speech or conduct was not protected under the First Amendment because it obstructed their investigation or endangered the officers, see Colten v. Kentucky, 407 U.S. 104, 109, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), and no recommendation on that issue will be made. Defendants only argue that Plaintiff Jackson's speech was a matter of purely private concern. While Defendants passingly reference that “Officer Brown didn't approach Plaintiff Jackson because of his speech, but rather, because he wanted to ensure the safety of everyone involved[, ]” (ECF No. 69 at 11), the court should reject such a barebones argument to support summary judgment, as Defendants provide no legal analysis as to why this generalization entitles Defendants to summary judgment. See n. 1 supra.

As to Defendants' argument that there was probable cause to arrest and charge Plaintiff Jackson, to the extent that Plaintiff Jackson asserts a retaliatory arrest/prosecution claim, he only meets the causation requirement if he provides evidence of the total absence of probable cause for the underlying charges. Nieves, 139 S.Ct. at 1723 (retaliatory arrest); Hartman, 547 U.S. at 26365 (retaliatory prosecution). Plaintiff Jackson does not substantively respond to Defendants' argument that he has failed to provide evidence of the lack of probable cause for his arrest and merely responds that his “First Amendment retaliation claim is not premised solely on his arrest and prosecution.” (ECF No. 74 at 15). To this point, the Court of Appeals for the Seventh Circuit decision in Frederickson v. Landeros, 943 F.3d 1054 (7th Cir. 2019) is instructive. The Court held that Nieves barred retaliatory arrest claims where the plaintiff pleaded guilty to the charge, despite asserting that he only did so because his plea allowed him to get out of jail, the plaintiff did not challenge his guilty plea and the court assumed by virtue of the plaintiff's guilty plea that his charges were supported by probable cause. Id. at 1058. Because Plaintiff Jackson has offered no evidence that the Defendants lacked probable cause to arrest and prosecute him for obstruction of the administration of law and because he pleaded guilty to the charge and has not challenged that plea, Defendants are entitled to summary judgment on Plaintiff Jackson's First Amendment retaliatory arrest/prosecution claims.

Turning to Plaintiff Jackson's remaining theories of retaliation - i.e., his claim that he was retaliated against when Defendants ordered him not to enter his home, pointed a TASER at him, and physically restrained him and did not allow him to enter his home, Defendants do not specifically articulate an argument in favor of summary judgment for this alleged retaliation. However, in Defendants' reply, they summarily argue that “[t]he principal in Heck is completely fatal to Plaintiff Jackson's First Amendment claim.” (ECF No. 77 at 4).⁴

4 Defendants also summarily argue that “Officers would have been permitted to stop Plaintiff Jackson to obtain the information needed to complete Mr. Paige's arrest[, ]” ostensibly for the proposition that they were entitled to conduct an investigatory stop of Plaintiff Jackson. Such a generalization falls far from Defendants meeting their burden of showing they are entitled to judgment as a matter of law and this argument is summarily rejected. See n.1 supra.

As previously explained, Plaintiff Jackson does not claim that the seizure of his person produced evidence used against him to support his conviction, and therefore his First Amendment retaliation claim does not implicate the validity of his obstruction conviction. See Chambers, 406 Fed.Appx. at 573 (unpublished). By finding that Plaintiff Jackson was retaliated against for criticizing police presence on his property by having a TASER pointed at him, being told not to go inside his home and being physically restrained does not require a determination of whether his obstruction conviction for letting the dog out of the house was valid or an act of retaliation. See e.g., Ashton v. City of Uniontown, 459 Fed.Appx. 185 (3d Cir. 2012) (First Amendment retaliation claims Heck barred where the court would have to decide whether his conviction was valid or an act of retaliation). Accordingly, Plaintiff Jackson's First Amendment retaliation claim related to his allegedly retaliatory seizure is not Heck barred.

Accordingly, it is respectfully recommended that Defendants' motion for summary judgment as to Plaintiff Jackson's First Amendment retaliation claim be granted in part and denied in part. It is specifically recommended that summary judgment be granted related to Plaintiff Jackson's First Amendment retaliatory arrest/prosecution claims and denied related to Plaintiff Jackson's First Amendment retaliatory seizure claim.

iii. Plaintiff Jackson's Excessive Force claims

Plaintiff Jackson alleges that his right to be free from the use of excessive force was violated when Officer Brown grabbed Plaintiff Jackson to prevent him from entering his home and held onto him until Officer Brown was shot, when Officer Goetz aimed his gun at Plaintiff Jackson's head while he was being restrained by Officer Brown, and when Officer Berberich aimed his TASER at Plaintiff Jackson when he was standing on his porch. (ECF No. 1 at ¶¶ 122-25).

Defendants argue that they are entitled to summary judgment on Plaintiff's excessive force claims because no unreasonable force was used by Officer Brown and Officers Goetz and Berberich did not have any physical contact with Plaintiff Jackson.

Claims of excessive force by police officers in the context of an arrest, investigatory stop or other “seizure” are analyzed under the Fourth Amendment. Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Excessive force claims are analyzed under the “objective reasonableness” standard which analyzes the officer's conduct “from the perspective of a reasonable officer on the scene.” Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). Courts may not assess the officer's reasonableness with the benefit of 20/20 hindsight, but rather must evaluate reasonable on a case-by-case basis depending on the facts and circumstances such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citations omitted). Additionally, courts in this circuit must consider “the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers may contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997) (abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)). Courts must also consider that officers are often forced to make “split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary.” Couden v. Duffy, 446 F.3d 483, 493 (3d Cir. 2006).

Because the claims of excessive force require an analysis of each Officers' conduct, each will be addressed separately. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (vicarious liability is inapplicable in section 1983 cases and “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”).

1. Officer Berberich

Defendants argue that Officers Berberich and Goetz are entitled to summary judgment on Plaintiff Jackson's excessive force claim because he “failed to show that either of these Defendants had any physical contact with Plaintiff Jackson.” (ECF No. 69 at 12). Specific as to Officer Berberich, Defendants solely argue that “Plaintiff Jackson has completely failed to adduce any evidence that Officer Berberich, who was engaged in helping to arrest Mr. Paige, had anything other than verbal contact with Plaintiff Jackson. There is no evidence that Officer Berberich approached Plaintiff Jackson, touched him, or used any force whatsoever.” (ECF No. 69 at 14).

As Plaintiff Jackson points out, Defendants' argument ignores Plaintiff Jackson's assertion that Defendant Berberich pointed a TASER at him when he remained on his front porch. In their reply brief, Defendants argue that the only evidence that Plaintiff Jackson offers is own testimony that “[t]hey're telling me to step away - I'm sorry, not gun, TASER pointed still. They got two TASERs still pointed at that point[, ]” (ECF No. 73-2 at 2-3) and argue that this testimony is too general to support a claim that Defendant Officer Berberich pointed a TASER at Plaintiff Jackson. (ECF No. 77 at 2). Viewing this testimony in the light most favorable to Plaintiff Jackson, it is reasonable to infer through this testimony that Officer Berberich pointed his TASER at Plaintiff Jackson. It is not proper for the court to determine whether this in fact occurred.

Turning to Defendants' argument that Officer Berberich did not come into physical contact with Plaintiff Jackson, there is no requirement that a civil rights plaintiff alleging excessive force during a seizure show physical contact. To the contrary, a seizure under the Fourth Amendment “requires either physical force . . . or, where that is absent, submission to the assertion of authority.”) California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (finding that where there is no evidence of submission from the threat of force, there is no seizure for Fourth Amendment purposes). Accordingly, Defendants' argument is rejected, and it is respectfully recommended that Defendants' motion for summary judgment be denied as to Plaintiff Jackson's Fourth Amendment excessive force claim against Defendant Officer Berberich.⁵

5 Again, Defendants make no legal analysis as to whether it was reasonable for Officer Berberich to threaten the use of force against Plaintiff Jackson by aiming a TASER at him under the circumstances. See Arditi v. Subers, 216 F.Supp.3d 544, 557-59 (E.D. Pa. 2016) (applying the factors in Graham, 490 U.S. 386 to determine whether a law enforcement officer's threat to use a taser on the plaintiff was excessive under the Fourth Amendment). Therefore, no recommendation on this issue will be made.

2. Officer Goetz

Defendants argue that Officers Berberich and Goetz are entitled to summary judgment on Plaintiff Jackson's excessive force claim because he “failed to show that either of these Defendants had any physical contact with Plaintiff Jackson.” (ECF No. 69 at 12). Specific as to Officer Goetz, Defendants argue that the entire incident from when Officer Goetz stopped the individual to arrest him to when the shots were fired lasted approximately two minutes, that “when the dog was released . . . Officer Goetz retrieved his firearm in reaction to a second arrest[, ]” had not seen Plaintiff Jackson's left hand as he kept it in his pocket, and “retrieved his firearm to ensure Officer Brown's safety” because he was unsure his TASER would work on the dog, and “he carefully aimed away from Plaintiff Jackson.” (ECF No. 69 at 14-15). Officer Goetz also argues that the interaction with the dog was mere seconds, and prior to that, Plaintiff Jackson had refused repeated orders to show his hands and not to open the door. (ECF No. 69 at 15). Defendants argue that this evidence does not show that Officer Goetz “had any physical contact with Plaintiff Jackson's person[, ]” or “intentionally tried to injure Plaintiff Jackson.” (ECF No. 69 at 15).

Plaintiff Jackson argues that this recitation of facts is in dispute and alleges that Officer Goetz aimed the firearm at his head and simultaneously ordered Plaintiff Jackson to gain control of his dog and there was no evidence that Officer Goetz was arresting Plaintiff Jackson when he drew his firearm.⁶ Because the court must view the facts in the light most favorable to Plaintiff Jackson, it will be assumed that Officer Goetz pointed his gun at Plaintiff Jackson's head before firing his weapon and shooting Officer Brown in the foot and firing a second round hitting the dog.

6 Plaintiff Jackson does not expressly assert that it was excessive force for Officer Goetz to brandish his TASER or to fire his weapon in close proximity to him and no recommendation as to those theories will be made. See In re City of Philadelphia Litig., 158 F.3d 711, 722 (3d Cir. 1998) (an excessive force claim requires law enforcement action that demonstrates an objective intent to effectuate a seizure but the seizure does not need to occur through the specific means intended to bring it about); Brice v. City of York, 528 F.Supp.2d 504, 510 (M.D. Pa. 2007) (same; collecting cases).

As to Defendants' first argument that Officer Goetz did not have any physical contact with Plaintiff Jackson, that argument is rejected for the same reasons stated above. California, 499 U.S. at 626. As to the remaining arguments, Plaintiff Jackson's claim for excessive force against Officer Goetz presents a close question. The court must consider the following factors in determining whether the force used by Officer Goetz was excessive:

[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, [3] whether he actively is resisting arrest or attempting to evade arrest by flight, [4] the possibility that the persons subject to the police action are violent or dangerous, [5] the duration of the action, [6] whether the action takes place in the context of effecting an arrest, [7] the possibility that the suspect may be armed, and [8] the number of persons with whom the police officers must contend at one time.

Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir. 2004) (citing Graham, 490 U.S. at 396; Sharrar, 128 F.3d at 822). While the question of “reasonableness under the Fourth Amendment should frequently remain a question for the jury[, ] . . . defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.” Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) (citations and internal quotation marks omitted). “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Graham, 490 U.S. at 395. The United States Supreme Court “has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396. The Court also noted that “ ‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment.” Id. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

While neither party made a full analysis of Officer Goetz's alleged excessive force under the Graham/Sharrar factors, the undersigned will apply those factors in the light most favorable to Plaintiff Jackson.

Here, some factors clearly weigh in favor of Plaintiff: Plaintiff Jackson was convicted of obstruction of the administration of law which is a misdemeanor of the second degree and not a severe offense. Moreover, this crime only came to fruition after Plaintiff was seized by the Officers and whether this seizure was reasonable is in dispute. Likewise, Plaintiff Jackson was outnumbered three-to-one. Even considering that the Officers had to contend with the individual being arrested, there is no evidence that Mr. Paige was noncompliant or not in custody at any point, or that he attempted to insert himself in the incident between the Officers and Plaintiff Jackson. While it is undisputed that Plaintiff Jackson did not comply with Officers' orders, there is no evidence that he resisted arrest or attempted to evade arrest by flight or resisted once he was physically restrained by Officer Brown when Officer Goetz pointed his gun at Plaintiff Jackson.

On the contrary, the duration of the action weighs in favor of Officer Goetz, as the entire incident was under five minutes in length and the amount of time that the dog was released, and Officer Goetz pointed his gun at Plaintiff Jackson was mere seconds and Plaintiff Jackson suffered no physical injuries from Officer Goetz's threat of using a firearm.

As to whether Plaintiff Jackson posed an immediate threat to the safety of the officers, was violent or dangerous or whether there was a possibility that Plaintiff Jackson was armed requires a more complex analysis. Of course, the court must view the facts in the light most favorable to Plaintiff Jackson.

What Officer Goetz knew at the time was that Plaintiff Jackson came out of his home onto his front porch with his hands in the pockets of his hooded sweatshirt on a cold day while the Officers were arresting a man in his front yard. There is no evidence that the Officers had any reason to believe that Plaintiff Jackson knew the man getting arrested, though later they learned he was Plaintiff Jackson's cousin. Plaintiff Jackson maintains that he asked the Officers what they were doing on his property and they ignored him, so he raised his voice at the Officers. As to this interaction, Plaintiff Jackson testified:

A: When I came outside, I'm asking them, “What's going on? What's going on? I'm not getting a response. So I see that they got the TASERs pointed, and they're arresting Devin Paige. So I'm asking them what's going on. I'm getting a little upset, and they're not telling me. They're literally ignoring me.

Q: Well, did you walk outside?

A: Yeah, its my property. Yeah, I did walk outside -...

Q: And you started to talk to the officers?

A: Yes, which is not a crime.

Q: And were you talking, or were you yelling?

A: I was talking at first, until - until they - until I felt I was being ignored or until I felt like no one could hear me. So I raised by voice a little bit do they can hear me.

Q: And you said previously, I think, during testimony in criminal court that you had choice words for them. What does that mean?

A: Yeah, just you think about everything you say before you say it. So you had some choice words. I select the words that I chosen for them, and that was that.

Q: Does that mean you were swearing at them?

A: I wouldn't - I wouldn't say I was swearing at them. I wouldn't say I was swearing at them. I was definitely asking them what were they - what were they doing on my property. So I was selective with my words, so, yes.

(ECF No. 73-2 at p. 19; 28-29).

Defendants strongly oppose Plaintiff's version of events and maintain that Plaintiff Jackson yelled at them and appeared agitated and used obscenities with them to “get the f**k off my property.” For purposes of summary judgment, the court must take these facts in the light most favorable to Plaintiff and cannot make credibility determinations on witness's accounts of the events, meaning that the court can only consider that Plaintiff raised his voice to the Officers repeatedly asking them what they were doing and was upset. Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (questions of credibility must be left up to the jury when both sides have divergent accounts of what occurred and overturned a district court's ruling of summary judgment in favor of defendant police officers for making credibility determinations).

It is undisputed that Plaintiff Jackson did not attempt to leave his front porch for the entirety of the incident, nor did he attempt to move closer to the Officers at any point in time. Officers told Plaintiff Jackson to take his hands out of his pockets and he did not comply. Officers heard the dog barking inside, and as Plaintiff Jackson turned to go back into his house, Officers ordered Plaintiff Jackson to not open the door and Plaintiff Jackson did not comply. Officer Brown ran onto the front porch to stop Plaintiff from going inside and the dog was released to the front porch. Officer Goetz then holstered his TASER and unholstered his gun and as Plaintiff Jackson alleges, aimed it at his head while commanding him to get control of his dog. During the time Officer Goetz pointed the gun at Plaintiff Jackson's head, Officer Brown was in physical custody of Plaintiff Jackson holding him in the alcove on the front porch.

Viewing these facts in the light most favorable to Plaintiff Jackson, it was not objectively reasonable for Officer Goetz to believe Plaintiff Jackson posed an immediate threat or was violent or dangerous. Plaintiff Jackson did not brandish a weapon, and whether it was reasonable for Officer Goetz to believe Plaintiff Jackson had a weapon in his pocket because he refused to remove his hands from his pockets is a credibility issue. Anderson, 477 U.S. at 255. While Plaintiff Jackson raised his voice when questioning the Officers' presence on his property, Plaintiff Jackson did not threaten the use of violence. While Plaintiff Jackson disobeyed the Officers' orders to not go inside his home, this does not show that Plaintiff Jackson was a threat of immediate violence to the Officers and merely shows that he was indignant to their orders. El v. City of Pittsburgh, 975 F.3d 327, 342 (3d Cir. 2020) (refusing to obey orders during an investigatory stop did not rise to the level of violent or dangerous). While there is authority finding that a detainee's refusal to remove his hands from his pockets when ordered to do so is a relevant consideration, Defendants have cited to no authority standing for the proposition that a bystander's refusal to do so justifies the use of force. Lockhoff v. Slonaker, No. CV 16-2893, 2017 WL 2423790, at *6 (E.D. Pa. June 5, 2017) (collecting cases). Plaintiff Jackson was a bystander to the arrest being conducted in his front yard and there are issues of fact related to whether his seizure was supported by reasonable suspicion; Officers were not on his property investigating any crime that Plaintiff Jackson purportedly committed. Further, it was not objectively reasonable to believe that the dog posed an immediate threat that justified Officer Goetz pointing his gun at Plaintiff's head. Uncontrolled dogs can undoubtedly pose immediate threats of violence or danger. It is undisputed that Officer Goetz unholstered his gun after the dog was let out of the house. While Officer Goetz makes the argument that he unholstered his gun to use on the dog, his intent or motivation in unholstering his gun is not relevant in an objective reasonableness determination, Graham, 490 U.S. at 397, and viewing the evidence in the light most favorable to Plaintiff, the court must assume that Officer Goetz trained his weapon at Plaintiff Jackson's head. At that point, it is undisputed that Officer Brown had Plaintiff Jackson physically restrained and Plaintiff Jackson was unable to control his dog, therefore, it is not reasonable to assume that Plaintiff Jackson was an immediate threat or was violent or dangerous when Officer Goetz pointed his gun at Plaintiff Jackson's head. See Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009) (“[P]ointing a gun at a compliant adult in a nonthreatening situation ... can also constitute excessive force.” (emphasis added); Lockhoff, 2017 WL 2423790, at *11 (noting “the Courts of Appeal that have directly addressed the issue have had little trouble concluding that the continued use of force by a police officer after a detainee has been subdued is a clearly established Fourth Amendment violation” and collecting cases)). Whether the dog, who was unable to be controlled by Plaintiff Jackson, posed an immediate threat to the Officers is not relevant to this analysis.⁷ Therefore, these factors weigh against Officer Goetz's use of force.

7 This conclusion should be limited to the facts of this case, as it is reasonable that a dog could be used by a suspect to threaten violence or danger in a situation, for example, where the dog is being given commands to attack. This was not the circumstance here and this analysis should not be so broadly applied to support such a finding.

Viewing the totality of the circumstances surrounding the interaction between Plaintiff Jackson and Officer Goetz and viewing the facts in the light most favorable to Plaintiff Jackson, and even considering Plaintiff Jackson's obstruction of administration of law, a jury could reasonably conclude there was a violation of his right to be free from Officer Goetz's unreasonable use of force.

Accordingly, it is respectfully recommended that Defendants' motion for summary judgment as to Plaintiff Jackson's Fourth Amendment excessive force claim against Officer Goetz be denied and that claim be permitted to proceed to trial.

3. Officer Brown

Officer Brown argues that he is entitled to summary judgment on Plaintiff Jackson's excessive force claim because at the point that he went on to the porch, he wanted to make sure for safety reasons that Plaintiff Jackson did not have anything dangerous in his pockets, he acted reasonably when he grabbed Plaintiff Jackson to stop him from opening the door after the Officers instructed Plaintiff Jackson not to open the door, and the contact that he had while on the porch was de minimis. (ECF No. 69 at 15-16).

Plaintiff Jackson responds that Defendant Brown ignores Plaintiff Jackson's version of events, that he removed his hands before being grabbed by Officer Brown, at the time Plaintiff Jackson opened the door to his home to go back inside, he already had a TASER aimed at him, Defendants' justification that Plaintiff Jackson may have had a weapon is too general of a reason to use force and that Officers Berberich and Goetz admitted that when Plaintiff began walking toward his front door that he was free to leave and remove himself from the situation. (ECF No. 74 at 13).⁸

8 Plaintiff Jackson conflated his arguments for his Fourth Amendment excessive force claims and unlawful seizure claims. Because as recommended supra, Plaintiff Jackson's Fourth Amendment unlawful seizure claims be permitted to proceed, only an analysis of his excessive force claim against Officer Brown will be discussed.

The use of force that Plaintiff Jackson alleges violated his Fourth Amendment rights is that Officer Brown ran onto his front porch, grabbed him by his hooded sweatshirt and physically restrained him in an alcove on the front porch.

The parties seemingly argue the propriety of Officer Brown's stop-and-frisk and whether it was justified by reasonable suspicion. However, that is not the proper inquiry in an excessive force case. Again, while neither party made a full analysis of Officer Brown's alleged excessive force under the Graham/Sharrar factors, the undersigned will apply those factors in the light most favorable to Plaintiff Jackson.

As to the severity of the crime at issue, Plaintiff Jackson was convicted of obstruction of the administration of law which is a misdemeanor of the second degree and not a severe offense. Moreover, this crime only came to fruition after Plaintiff was seized by the Officers and whether the seizure was reasonable is in dispute. This factor weighs against Officer Brown's use of force.

Viewing the facts in the light most favorable to Plaintiff Jackson, it was not objectively reasonable for Officer Brown to believe Plaintiff Jackson posed an immediate threat or was violent or dangerous. Plaintiff Jackson did not brandish a weapon, and whether it was reasonable for Officer Brown to believe Plaintiff Jackson had a weapon in his pocket because he refused to remove his hands from his pockets is a credibility issue. Anderson, 477 U.S. at 255. While Plaintiff Jackson raised his voice when questioning the Officers' presence on his property, Plaintiff Jackson did not threaten the use of violence. While Plaintiff Jackson disobeyed the Officers' orders to not go inside his home, this does not show that Plaintiff Jackson was a threat of immediate violence to the Officers and merely shows that he was indignant to their orders. El, 975 F.3d at 342 (refusing to obey orders during an investigatory stop did not rise to the level of violent or dangerous). While there is authority finding that a detainee's refusal to remove his hands from his pockets when ordered to do so is a relevant consideration for an investigatory frisk, Defendants have cited to no authority standing for the proposition that a bystander's refusal to do so justifies the use of force. Lockhoff, 2017 WL 2423790, at *6 (collecting cases). Plaintiff Jackson was a bystander to the arrest being conducted in his front yard; there are issues of fact related to whether his seizure was supported by reasonable suspicion and Officers were not on his property investigating any crime that Plaintiff Jackson purportedly committed. When Plaintiff Jackson turned to go into his house, Officer Brown ran up onto the porch to stop him and grabbed him, setting in motion the chain of events that ended in Plaintiff letting the dog out of the house. Officer Brown did so, even with two other Officers pointing TASERs at Plaintiff Jackson. Taking these facts into consideration, these factors weigh against Officer Brown's use of force.

As to whether Plaintiff Jackson was actively resisting arrest or attempting to evade arrest by flight and whether the action takes place in the context of effecting an arrest, these factors weigh against Officer Brown's use of force. There is no evidence that Plaintiff Jackson resisted arrest or attempted to evade arrest by flight. While Plaintiff Jackson admitted that he disobeyed orders from the officers to remove his hands from his hooded sweatshirt and to not open the door and go back into his home, there is no evidence that he was under arrest prior to disobeying officers' orders, or that once he was physically restrained by Officer Brown that he resisted in any way.

As to the duration of the action, this factor weighs in favor of Officer Brown, as the entire incident was under five minutes in length and the amount of time that Plaintiff Jackson turned to go inside the house and Officer Brown ran up on the porch was mere seconds and Plaintiff Jackson suffered no physical injuries from Officer Brown's restraint.

Lastly, as to the number of persons with whom the police officers must contend at one time, this factor weighs against Officer Brown's use of force. Plaintiff Jackson was outnumbered three-to-one. Even considering that the Officers had to contend with the individual being arrested, there is no evidence that Mr. Paige was noncompliant or not in custody at any point, or that he attempted to insert himself in the incident between the Officers and Plaintiff Jackson.

Viewing the totality of the circumstances surrounding the interaction between Plaintiff Jackson and Officer Brown and viewing the facts in the light most favorable to Plaintiff Jackson, and even considering Plaintiff Jackson's obstruction of administration of law, a jury could reasonably conclude there was a violation of his right to be free from Officer Brown's unreasonable use of force. It is therefore respectfully recommended that Defendants' motion for summary judgment as to Plaintiff Jackson's claim for excessive force be denied and this claim proceed to trial.

iv. Qualified Immunity

Defendants argue that they are entitled to qualified immunity because Plaintiffs have alleged no constitutional violations. (ECF No. 69 at 16- 20). Those arguments are addressed supra. Defendants do not provide any analysis as to whether the second prong of a qualified immunity analysis is met - i.e., whether the constitutional right was clearly established - and merely reiterate their arguments for summary judgment as to each constitutional violation. Considering the lack of argument by Defendants, it is respectfully recommended that Defendants' motion in this respect be denied for failure to meet the burden of showing they are entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 323; LcVR 56.B.2 (“[t]he supporting memorandum must address applicable law and explain why there are no genuine issues of material fact to be tried and why the moving party is entitled to judgment as a matter of law”).⁹

9 Alternatively, it is respectfully recommended that the motion be denied without prejudice for the parties to brief the issue should any constitutional claims remain. Granting summary judgment on grounds not raised by a party is only appropriate after giving notice and a reasonable time to respond. Fed.R.Civ.P. 56(f).

v. Assault and Battery under Pennsylvania law

Defendants argue that they are entitled to summary judgment on Plaintiff Jackson's assault and battery claims under Pennsylvania law because the Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”) insulates government actors from liability for torts committed by its agents acting in their official capacity. 42 Pa. Stat. and Cons. Stat. Ann. § 8541, et seq. Under the PSTCA, immunity does not extend to “willful misconduct, ” which is “synonymous with the term ‘intentional tort.'” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006). A police officer's conduct is “willful” if he “desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue, ” so that desire is implied. Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440, 443 (1965). “A police officer may be held liable for assault and battery when a jury determines that the force used in making an arrest is unnecessary or excessive[.]” Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994). Plaintiff Jackson has not asserted a claim for negligence and asserts the intentional tort claims of assault and battery and therefore this immunity exception does not apply. See Renk, 641 A.2d at 293.

Defendants also argue that Plaintiff Jackson's assault and battery claims must fail because their conduct meets the “objective reasonableness” standard. The standard for determining assault and battery is analogous to the standard used for excessive force under the Fourth Amendment therefore, because it is recommended that the court deny Defendants' motion for summary judgment for Plaintiff Jackson's Fourth Amendment excessive force claims, for these same reasons, it is respectfully recommended that Defendants' motion for summary judgment on Plaintiffs' assault and battery claims be denied. See Renk, 641 A.2d at 293.

d. Conclusion

For these reasons, it is respectfully recommended that Defendants' motion for summary judgment be granted in part and denied in part. Under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until December 6, 2021 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).