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HomeMy WebLinkAbout02-2666 GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: - (/d)- ;:;;,/;6 ~ DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to Robert Kline, Cumberland County Sheriff s Department, One Courthouse Square, Carlisle, P A 17013. Date: May 31, 2002 ~- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Supreme Court ID# 81924 (717) 241-6070 WRIT OF SUMMONS To The Above Named Defendants: Mount Holly Springs Borough, 200 Harmon Street, Mt. Holly Springs, P A 17065 James Bradley, 200 Harmon Street, Mt. Holly Springs, P A 17065 Duane Lebo, Carlisle, PA 17013 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: ?n,- 31. ;2t'Jd.2 By: ~. /!?~ _ Prothonotafy ~ ,e'. ,;.6A- Deputy .9-T ~r ,,", S,': 1~ ~ ....... ~. ~ ~ ~ :::};i;~:;j~i5:/r)';: ;.;i;EL,!:~. ( .... (~) " -,--' ~,~~ ~ I':~ L) :::.-; 2.;-., :'"'< ~~1 ~.~~ ~~ ~ ~ ~ i' . GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter the accompanying Rule upon Plaintiff for a Complaint in the above- referenced matter. DATE: (p1~,lot Respectfully submitted, Lavery, Faherty, Young & Patterson, P.c. By: Ja s D. Young sq' e Atty No. 53904 225 Market Street, Suite 304 PoD. Box 1245 Harrisburg, PA 17108-1245 Attys for Defendants GUY BURFORD, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, P A vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO PLAINTIFF, GUY BURFORD: Please file your Complaint in the above-captioned matter within twenty (20) days or suffer a judgment of non pros. Date~u...u@... 2'-11 .ll)O~ CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C, do hereby certify that on this c;2/tJt day of June, 2002, I served a true and correct copy of the foregoing Praecipe for Rule to File Complaint and Rule via u.s. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 ~L.~ Linda L. Gustin >- ~ 1--- ,,--., U_l~,: C) ~~. G: \:,:~' '.1 _...i. (~j ~: ~- (' c.J" l.LI ,...:.. , [j:' ~: : c-- I.L o Ln 0., N ::c CL i;; ~,~ <'-'z u~ ::1?:j -~>- '- CJ) 5z -cz ~.uw r Cl a.. :2: ::::> () N ;;1:: :::; J N o GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendants, Duane Lebo, James Bradley and the Mount Holly Springs Borough in the above referenced matter. DATE: ~/~,lo~ Respectfully submitted, Lavery, Faherty, Young & Patterson, P.c. By: J es D. Yo Atty No. 53904 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Attys for Defendants CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.e., do hereby certify that on this ~ day of June, 2002, I served a true and correct copy of the foregoing Entry of Appearance via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, P A 17013 ~L.ql'~ Linda L. Gustin ~ \-' C" ~{~'. C,):~-- I ,'- '-, if! to ",. N ::c 0.. tl_ () :1' N ~-~'- :;:::J -, ('c\ o ?: Z ::JA' ("-) ::h O~ '~? -,~~:"' en 'JZ ,,:1:2 i.UiJJ ,') 0.- :?- ::,) (.) SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-02666 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURFORD GUY VS LEBO DUANE ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BRADLEY JAMES but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of FRANKLIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On September 24th , 2002 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Franklin Co 42.70 .00 67.70 09/24/2002 ROMINGER & BAYLEY So answer--8~ ~~ .----. ~~1~i0:<~-- . Sheriff of Cumberland County Sworn and subscribed to before me this 7 e- day of {On-..L. , .J-Vl:J~ A.D. C);UA~- 0.. ~,(11" I 'fAZi I Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2002-02666 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURFORD GUY VS LEBO DUANE ET AL BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon MOUNT HOLLY SPRINGS BOROUGH the DEFENDANT , at 1524:00 HOURS, on the 5th day of June 2002 at 200 HARMON STREET MT HOLLY SPRINGS, PA 17065 by handing to PAT FISHER UTILITY BILLING CLERK a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 4.83 .00 10.00 .00 20.83 -,' "'l>'~ ' ~ f"" e" ,.y....P: ' .t!""'~~? :-,.,,~ ..c*~.':;:::..,.~ R. Thomas Kline 09/24/2002 ROMINGER & BAYLEY ~e0,) ~ J Sworn and Subscribed to before By: me this 1 e- day of C9eJ;k~ JIM] , A.D. C \ - h' pr~th~~~~~~yl ' ~ SHERIFF'S RETURN - REGULAR CASE NO: 2002-02666 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURFORD GUY VS LEBO DUANE ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon LEBO DUANE the DEFENDANT , at 0852:00 HOURS, on the 6th day of June 2002 at 661 WEST OLD YORK ROAD CARLISLE, PA 17013 by handing to DUANE LEBO a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 4.83 .00 10.00 .00 32.83 _/"J ,// ~/<< ~ r..~.<.>",. ...' '/:/" . ,;,:1f. ..Sc"?'''''''~'-: ~ <f ,r;"';.r';~/" ....-e:o..._.... ." R. Thomas Kline 09/24/2002 ROMINGER & BAYLEY Sworn and Subscribed to before me this 7 ib- day of By: .v-M,J~~ .A Deputy Sh iff (j)~ .2ooL A.D. ~~O~U I/~ Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2002-00076 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN GUY (BURFORD) '--.-.- -~ ----..-."" 1//:)..}07/ .I~..>,;..,..... ~ '" - '1'!i VS JAMES BRADLEY ET AL GUS ALEXIOU , Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within PRAE WRIT SUMMONS was served upon the BRADLEY JAMES DEFENDANT , at 1240:00 Hour, on the 25th day of June 2002 at FCSO 157 LINCOLN WAY EAST CHAMBERSBURG, PA 17201 by handing to JAMES BRADLEY a true and attested copy of PRAE WRIT SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Mileage 9.00 9.00 6.00 10.00 8.70 42.70 So Answe~ ~ GUS ALEXIOU By Deputy Sheriff 06/25/2002 ROMINGER AND BAYLEY Sworn and Subscribed to before f:)i-=;\ day of A.D. -.-..-..----.- "eal t rJPatricia A. Strine, Notary Public \ ChamberSb.urg Boro, Franklin County My Commission _~~~~~ras N,ov. 4, 2004 ~ In The Court of Common Pleas of Cumberland County, Pennsylvania Guy Burford VS. Duane Lebo et al SERVE: James Bradley ~OOd-- 02 1& - ( No. 2666 civil Now, June 12. 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ......,./ :ij' ~~...e..~//j;-~R Sheriff of Cum berland County, P A Affidavit of Service Now, JLA<<-L Z-<)~ ,20 07.-, at (2-:<(0 o'clock -P-- M. served the within lU y',t () f S;~w<-"""-~ -J vt- WI -e .. () y u a. l-L<--, upon I=>---f at f-e. 5 0 it; 1 -1L~ 1-..1-0. J; C<4 6.. 'f'JA . !12.-01 and made known to ByCA-~ copy of the original LeI "vi. d f S ih~~~ 0. l ..;, the contents thereof. by handing to a So answers, ~ bLts Def' Sheriff of , County. PA 20 0........ ,- COSTS SERVICE MILEAGE AFFIDAVIT Z-1.c;u 870 (0.00 $ $ 1-::1.7 cJ : .. Notarial Seal !_:. .Patrlcla A. Strine, Notary Public _ '~,ldmbers~u~g 80ro, Franklin County l MY rnmmlsslon Expires Nov. 4, 2C04 GUY BURFORD, PlaintifT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 Phone: (717) 249-3166 GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED COMPLAINT And now comes Plaintiff by and through his Counsel Karl E. Rominger, Esq. and avers in support of his complaint as follows: 1. Plaintiff Guy Burford is an adult individual with an address of 424 North Hanover Street, Carlisle, P A 17013, being in Cumberland County. 2. Defendant Duane Lebo (hereinafter, "Lebo") is an adult individual residing in Cumberland County, and at all times relevant was the Chief of Police for the Mount Holly Springs Borough (hereinafter, "Mt. Holly"). 3. Defendant James Bradley (hereinafter, "Bradley") is an adult individual residing in Franklin County, and at all times relevant was the an Officer for the Mount Holly Springs Borough Police Force. 4. On or about approximately June 12,2000 Plaintiff was at home at, 424 North Hanover Street, Carlisle, P A 17013. 5. Defendants Lebo & Bradley arrived at Plaintiffs home in a pick-up truck believed to belong Lebo. 6. Neither Lebo nor Bradley were in Police uniform. 7. Defendants told Plaintiff he was under arrest, and claimed to be executing a fines and costs warrant. 8. Plaintiff believed such an arrest to be illegal, and while recognizing Lebo, refused to admit him to the residence. 9. Lebo and Bradley used force to capture Plaintiff, and did strike him, touch him, shove him, and otherwise grab his person in so capturing him. 10. Lebo and Bradley forced Defendant into Lebo's personal vehicle, and did then begin driving to an unknown destination. II. Upon information and belief, a neighbor witnessing this event called 911 to report the "abduction" of a local resident by two men with a pick-up truck. 12. Upon information and belief, there was nothing about the incident which would have allowed a bystander or neighbor to conclude that a police action was occurring, and even if the event were to be deemed a lawful arrest, the scope of the force used was excessive. 13. Upon Information and belief, the Carlisle Police were dispatched and gave pursuit of Lebo, Bradley and their captive. 14. Upon Information and belief, Lebo pulled his vehicle into the area of the Courthouse, and told confronting authorities he was bringing a prisoner to booking. 15. Lebo then was separated from Plaintiff, and Plaintiff was taken into official custody. 16. Plaintiff had bruises, wounds, and contusions as a direct and proximate result of the actions and physical contact sustained at the hands of Defendants Lebo and Bradley. COUNT I ASSAULT & BATTERY BURFORD v. LEBO & BRADLEY 17. Previous paragraphs are incorporated by reference, as if more fully set out herein. 18. Lebo and Bradley did touch Plaintiff without his consent, when they were not privileged to do so, or were acting outside the scope of any privilege they may claim. 19. Said touching, in the form of grabs, shoves, and holds was the cause of Plaintiff s injuries. 20. As a direct and proximate result of the actions of Lebo & Bradley, Plaintiff feared serious bodily harm or even death. 21. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result of Lebo and Bradley's actions, which will be proven at trial. 22. The actions of Defendants were outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. WHEREFORE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attorney's fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. COUNT II FALSE IMPRISONMENT / ARREST BURFORD v. LEBO & BRADLEY 23. Previous paragraphs are incorporated by reference, as if more fully set out herein. 24. Plaintiff was taken by force, against his will into the pick-up truck of Defendants. 25. Plaintiff was detained against his will, and was not allowed to go free. 26. The holding of defendant and / or taking of him by force constituted a false arrest and / or false imprisonment. 27. At the time Plaintiff's movements were restrained the Defendants were not privileged to hold or restrain Plaintiff. 28. Defendants were not in uniform, nor acting within their own jurisdiction at the time of the arrest of Plaintiff. 29. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result of Lebo and Bradley's actions, which will be proven at trial. 30. The actions of Defendants were outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. WHEREFO RE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attorney's fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. COUNT III 42 USC 1983 ACTION BURFORD v. LEBO, BRADLEY, & MT. HOLLY 31. Previous paragraphs are incorporated by reference, as if more fully set out herein. 32. Bradley and Lebo are employees ofMt. Holly, and Lebo was the chief of the police force at all times relevant, and this action is brought under 42 USC ~ 1983. 33. Bradley and Lebo were acting under their authority, and in their capacity as employees of Mt. Holly at the time of this incident. 34. Bradley and Lebo were acting with authority vested in them by Mt. Holly, which is a political subdivision of the Commonwealth of Pennsylvania, and thus were acting under the color of state law. 35. Lebo and / or the Officers under him, upon information and belief, had previously used excessive force and / or engaged in questionable police tactics of which Mt. Holly was aware. 36. Mt. Holly exhibited a reckless or deliberate indifference to the actions of its police force, and despite knowledge of problems with police action, and public concern, and took no action to remedy the problem nor did Mt. Holly promulgate effective policies to remedy the matter. 37. Lebo and Bradley in the course of their employment, by their actions previously described, did deprive Plaintiff of his rights and protections under the United States Constitution, including the 4th Amendment, the 14th Amendment, and the 8th Amendment. 38. Lebo had an acrimonious history with Plaintiff, and had twice before been involved in disputed arrests with Plaintiff, and should not have been allowed by policy to interact with Plaintiff. 38. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result ofMt. Holly's, Lebo's, and Bradley's actions, which will be proven at trial. 39. The actions of Defendants were outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. WHEREFORE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attorney's fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. Date: October 21, 2002 ;/ --- Karl E. Rominger, Esquire ROMINGER & BA YLEY 155 South Hanover Street Carlisle, P A 17013 Supreme Court ID# 81924 (717) 241-6070 GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 02-2666 : JURY TRIAL DEMANDED I am the attorney for Plaintiff, and after reasonable investigation, and based upon the information known to me, I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties ofPa. C.S. S 4904, relating to unsworn falsification to authorities. 6 L f l. i 200 L DATE: y ~/ Karl E. Rominger, Esq. GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for the Plaintiffs, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: James D. Young, Esq. Lavery, Faherty, Young & Patterson, PoCo 225 Market 81. Suite 403 PO Box 1245 Harrisburg, PA 17108 ,~ ~ -" /0-2/-02 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL V ANlA GARY BURFORD, Plaintiff 1.CV :~O. 02-2082 v. DUANE LEBO, an adult Individual, and DUANE LEBO, : CUMBERLAND COUNTY NO. 02-2666 in his ca paci ty as former Chief of Police of the Mount Holly Springs : Police Department, and JAMES , BRADLEY, an adult individual, and JAMES BRADLEY, in his official capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : FiL F"'D : JURY TRIAL DEMANDED f-iARRI.sS~G 0.1 , PA : ~V19 !' '"" 20D2 'L. ..... jr" ,__ r'UI ,. I.:. D'/H'" I A, CL~Rv OepUty C '\ lerk NOTICE OF REMOVAL TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL VANIA AND THE CUMBERLAND COUNTY PROTHONOTARY AND NOW, come Defendants, Duane Lebo, James Bradley and the Borough of Mount Holly Springs, by and through their attorneys, Lavery, Faherty, Young & Patterson, P.C., and hereby remove the above-captioned case to this Honorable Court and provide notice of same to Plaintiff's counsel and the Cumberland County Prothonotary and aver as follows: 1. This civil action was initiated by the Plaintiff, Guy Burford, by the filing of a Writ of Summons on or about May 31, 2002 in the Court of Common Pleas of Cumberland County (Civil Action - Law, No: 02-2666). 2. Undersigned counsel has entered his appearance on behalf of Defendants in the Court of Common Pleas of Cumberland County, Pennsylvania. A true and correct copy of counsel's Entry of Appearance is attached hereto and marked as Exhibit" A". 3. Pursuant to a Rule issued by the Cumberland County Prothonotary's Office on October 21, 2002, Plaintiff filed a Complaint against Defendants containing three counts and seeking compensatory and punitive damages, costs, interest and attorney's fees. 4. Plaintiff's Complaint attempts to assert claims for assault and battery (Count I) and false imprisonment/false arrest (Count (II) against Defendants, Lebo and Bradley. In Count III of the Complaint, Plaintiff attempts to assert claims pursuant to 42 U.S.C. 91983 against all Defendants 2 for alleged violations of Plaintiff's Fourth, Eighth and Fourteenth Amendment rights. A true and correct copy of Plaintiff's Complaint is attached hereto and marked as Exhibit "B" . 5. This civil action is one in which this Honorable Court has original jurisdiction pursuant to 28 U.S.C. 99 1331, 1343 and 1367, for Plaintiff's claims as to the deprivation of his federally protected rights. Accordingly, this matter is one which may be removed to this Honorable Court by notice pursuant to 28 U.s.C. 91441(b). 6. This Notice of Removal is being filed by all Defendants, who all concur in the removal of this action to the United States District Court for the Middle District of Pennsylvania. WHEREFORE, Defendants, Duane Lebo, James Bradley and the Borough of Mount Holly Springs, pray that the above civil action now pending in the Court of Common Pleas of Cumberland County, Pennsylvania, be removed to this Honorable Court. 3 DATE: Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C. By: tin J es D. Youn Atty No. 53904 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Attys for Defendants, Duane Lebo, James Bradley and the Mount Holly Springs Borough 4 ATTORNEY'S AFFIDAVIT James D. Young, Esquire, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Notice of Removal are true and correct to the best of his knowledge, information and belief. Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C. g, Esquire Atty J.D. 53 :t 225 Market Street, Suite 304 P. O. Box 1245 Harrisburg, PA 17108-1245 Attorneys for Defendants Sworn to and subscribed to before nle this I q'+h day of November, 2002. ....~L~ Notary PuBlic My Commission Expires: NOTARIAL SEAL UNOA L. GUSTIN. NOTARY PUBUC CllY OF HARRISBURG. DAUPHIN COUNTY . MY COMMISSION EXPIRES OCTOBER 17, 2005 5 " GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A NO. 02-2666 CIVIL CIVIL ACTION - LAW (") c $: -om rnrn Z:::D zr CD"" -<z r::o '< JURY TRIAL DEMANDED~o -0 >c: Z ~ ENTRY OF APPEARANCE TO THE PROTHONOTARY: 0 0 N -'1 L ::::! c: ;f}ll Z . r N ~m -::::':1-' ~ ,<..,J"7'" '.:J I '-10 -0 x-rf ::x r"~,,\ -rt ~D r:Y Om ~ "" .,;;::; .J...1. (.11 -< Please enter my appearance on behalf of Defendants, Duane Lebo, James Bradley and the Mount Holly Springs Borough in the above referenced matter. DATE: (pI t( lD 1- Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C. By: J es D. Yo Atty No. 53904 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Attys for Defendants CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.e., do hereby certify that on this ~ day of June, 2002, I served a true and correct copy of the foregoing Entry of Appearance via U.s. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 ~L..~ Linda L. Gustin . . GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult indivIDual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 Phone: (717) 249-3166 -~2 ft-tf">.!f"t.-"'" ~-~1i.l! ~P-:"1"'-opr~ !'~-1V~ ~~ i. .-i~'$J~W~ .b'''\~V''' . ~'-"'~"&../ .. . ,. .-- '! i' ~,.,~ "mM <'~ ~'j f',:;;~,,,, ",;>Q T-:':"'J<-",-.~.::~t"i'l3'\.? ~~~~~~ Ii. ~ts~~ ~~..~\.~ .;..""Gl ii',.~ ~w:;l..~.... 'Hi i.~p.:~j.:i,;,,'tl~:~1 'l.;_.:.;:'.,;,.:!~l~",,~..,: '5 ~. _':POI. _ .:... ." ~,'~-~ '''h,,. M~~ ~ ~.s!tf C{~H.t at Carlisle;: fa. !::l"i"~~ ~J~:.t; ""'~ .;.,. ~~. .-- T~i, H-tt v .f, - ~~ ; GUY BURFORD, Plaintiff : IN THE COURT OFCOMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LA W : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult indivIdual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLL Y SPRINGS BOROUGl!, Defendants : JURY TRIAL DEMANDED {,r, COMPLAINT And now comes Plaintiff by and through his Counsel Karl E. Rominger, Esq. and avers in support of his complaint as follows: 1. Plaintiff Guy Burford is an adult individual with an address of 424 North Hanover Street, Carlisle, P A 17013, being in Cumberland County. 2. Defendant Duane Lebo (hereinafter, "Lebo") is an adult individual residing in Cumberland County, and at all times relevant was the Chief of Police for the Mount Holly Springs Borough (hereinafter, "Mt. Holly"). 3. Defendant James Bradley (hereinafter, "Bradley") is an adult individual residing in Franklin County, and at all times relevant was the an Officer for the Mount Holly Springs Borough Police Force. 4. On or about approximately June 12, 2000 Plaintiff was at home at, 424 North Hanover Street, Carlisle. PA 17013. 5. Defendants Lebo & Bradley arrived at Plaintiffs home in a pick-up truck believed to belong Lebo. 6. Neither Lebo nor Bradley were in Police uniform. 7. Defendants told Plaintiff he was under arrest, and claimed to be executing a fmes and costs warrant. 8. Plaintiff believed such an arrest to be illegal, and while recognizing Lebo, refused to admit him to the residence. 9. Lebo and Bradley used force to capture Plaintiff, and did strike him, touch him, shove him, and otherwise grab his person in so capturing him. 10. Lebo and Bradley forced Defendant into Lebo's personal vehicle, and did then begin driving to an unknown destination. 11. Upon information and belief, a neighbor witnessing this event called 911 to report the "abduction" of a local resident by two men with a pick-up truck. 12. Upon information and belief, there was nothing about the incident which would have allowed a bystander or neighbor to conclude that a police action was occurring, and even if the event were to be deemed a lawful arrest, the scope of the force used was excessive. 13. Upon Information an.d belief, the Carlisle Police were dispatched and gave pursuit of Lebo, Bradley and their captive. 14. Upon Information and belief, Lebo pulled his vehicle into the area of the Courthouse, and told confronting authorities he was bringing a prisoner to booking. 15. Lebo then was separated from Plaintiff, and Plaintiff was taken into official custody. 16. Plaintiff had bruises, wounds, and contusions as a direct and proximate result of the actions and physical contact sustained at the hands of Defendants Lebo and Bradley. COUNT I ASSAULT & BATTERY BURFORD v. LEBO & BRADLEY 17. Previous paragraphs are incorporated by reference, as if more fully set out herein. 18. Lebo and Bradley did touch Plaintiff without his consent, when they were not privileged to do so; or were acting outside the scope of any privilege they may claim. 19. Said touching, in the form of grabs, shoves, and holds was the cause of Plaintiff's injuries. 20. As a direct and proximate result of the actions of Lebo & Bradley, Plaintiff feared serious -- bodily harm or even death. 21. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result of Lebo and Bradley's actions, which will be proven at trial. 22. The actions of Defendants were outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. WHEREFORE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attorney's fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. COUNT II FALSE IMPRISONMENT / ARREST BURFORD v. LEBO & BRADLEY 23. Previous paragraphs are incorporated by reference, as ifmore fully set out herein. 24. Plaintiff was taken by force, against his will into the pick-up truck of Defendants. 25. Plaintiff was detained against his will, and was not allowed to go free. 26. The holding of defendant and / or taking of him by force constituted a false arrest and / or - false imprisonment. 27. At the time Plaintiff's movements were restrained the Defendants were not privileged to hold or restrain Plaintiff. 28. Defendants were not in uniform, nor acting within their own jurisdiction at the time of the arrest of Plaintiff. 29. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result of Lebo and Bradley's actions, which will be proven at trial. 30. The actions of Defendants ~ere outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. WHEREFORE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attorney's fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. COUNT III 42 USC 1983 ACTION BURFORD v. LEBO, BRADLEY, & MT. HOLLY 31. Previous paragraphs are incorporated by reference, as if more fully set out herein. 32. Bradley and Lebo are employees of Mt. Holly, and Lebo was the chief of the police force at all times relevant, and this action is brought under 42 USC S 1983. 33. Bradley and Lebo were acting under their authority, and in their capacity as employees of - Mt. Holly at the time of this incident. 34. Bradley and Lebo were acting with authority vested in them by Mt. Holly, which is a political subdivision of the Commonwealth of Pennsylvania, and thus were acting under the color of state law. 35. Lebo and / or the Officers under him, upon information and belief, had previously used excessive force and / or engaged in questionable police tactics of which Mt. Holly was aware. 36. Mt. Holly exhibited a reckless or deliberate indifference to the actions of its police force, and despite knowledge of problems with police action, and public concern, and took no action to remedy the problem nor did Mt. Holly promulgate effective policies to remedy the matter. 37. Lebo and Bradley in the course of their employment, by their actions previously described, did deprive Plaintiff of his rights and protections under the United St~tes Constitution, including the 4th Amendment, the 14th Amendment, and the 8th Amendment. 38. Lebo had an acrimonious history with Plaintiff, and had twice before been involved in disputed arrests with Plaintiff, and should not have been allowed by policy to interact with Plaintiff. 38. Plaintiff suffered physical injury, mental anguish, pain, suffering, and emotional trauma as a direct and proximate result ofMt. Holly's, Lebo's, and Bradley's actions, which will be proven at trial. 39. The actions of Defendants were outrageous and shocking and constituted willful and malicious conduct for which punitive damages are applicable. \VHEREFORE Plaintiff requests judgement in his favor and against defendants for an amount in excess of the statutory limits of compulsory arbitration, along with punitive damages, costs, interest, and attomey..l fees, along with an order of Court requiring Mt. Holly to promulgate and institute appropriate police policies and practices so as to protect the public from similar incidents and recurrences. ? ------ Date: October 21, 2002 Karl E. Rominger, Esquire ROMINGER & BAYLEY 155 South Hanover Street Carlisle, PAl 70 13 Supreme Court ID# 81924 (717) 241-6070 GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult indiviaual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLL Y SPRINGS BOROUGH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LA W : NO: 02-2666 : mRY TRIAL DEMANDED I am the attorney for Plaintiff, and after reasonable investigation, and based upon the information known to me, I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties ofPa. C.S. ~ 4904, relating to unsworn falsification to authorities. DATE: 6 (. l 2? 2c'-~'1- ? Karl E. Rominger, Esq. < . GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult indivIDual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE _ I, Karl E. Rominger, Esquire, attorney for the Plaintiffs, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States Mail, fIrst class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: James D. Young, Esq. Lavery, Faherty, Young & Patterson, P.C. 225 Market St. Suite 403 PO Box 1245 Harrisburg, P A 17108 .?~.. i _ !e ro.. ,#".~. '; ".< L' ./ . . ... ..c- CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 19th day of November, 2002, I served a true and correct copy of the foregoing Notice of Removal via U. S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Curtis R. Long Cumberland County Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 ~L.~ Linda L. Gustin ", ,-; l~) ......l t ) r".) (:'1 :f1 (.......': -...... Or?-., ,z"G (: IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL Y ANIA GUY BURFORD, Plaintiff CIVIL NO.l:CY-02-2082 v. DUANE LEBO, et at., Defendants ORDER In !accordance with the forgoing memorandum, IT IS HEREBY ORDERED THAT: (1) Defendant's motion for partial summary judgment is GRANTED. The Clerk of Court shall enter judgment against Plaintiff and for Defendant Bradley as to Count I and ~gainst Plaintiff and in favor of all Defendants as to Counts II and III. (2~ Pursuant to 28 U.S.C. S 1367(c)(3), the court declines to further exercise its supI!lemental jurisdiction in the captioned matter. (3)i The remainder of the captioned case is remanded to the Court of Common Pleas pf Cumberland County. (4)!Defendant's motion in limine filed September 19,2003 is MOOT. (5) 'The Clerk of Court shall close the case file. Dated: Novemtier 5,2003. s/srv~via H. R~bo $y VIa H. Ram 0 United States District Judge 'C) 0 0 c '"' -., $: ~ m -om (5 , c:pn. ~~ - i'"-~ -" .L....._.. .. fT, :Z:C ,~ -..J T' (f) .' ~ :''') - -<, "-:-:j(.: r<~: ~~ ,";,,-"/", ~ " " )> ,~ -'- c"':) ZC ---C) ill rn :J>e: ,~~ --< z .,- 55 ::2. (..> -< IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL Y ANIA ~. O;J,)('e, (,. GUY BURFORD; Plaintiff CIVIL NO.l:CY-02-2082 v. D CIeIk DUANE LEBO, et al., Defendants MEMORANDUM Before the court is Defendants' motion for partial summary judgment pursuant to Rill~ 56(c) of the Federal Rilles of Civil Procedure. The parties have briefed the issu~, and the matter is ripe for disposition. I. Bafkground Thf following facts are undisputed.2 Defendant Duane Lebo ("Lebo") is the former Chief of Police for Defendant Mt. Holly Springs Borough ("the Borough"). In ~ddition to serving as the chief of police for the Borough, Lebo was a Cumberland COFty Detective through the District Attorney's office. Defendant 1 In preJous memoranda, the court erroneously refem:d to Plaintiff as Gary Burford instead of Guy Burford. 'The . sputed facts are taken from "Defendants' Concise Statement Undisputed Material Facts," which was s 'tted in support of Defendants' motion for summary judgment. Middle Dislrict Local Rule 56.1 requires t "[t]he papers opposing a motion for summary judgment shall include a separate, short and concise stateme of material facts, responding to the nwnbered paragraphs set forth in [the moving party's statement of material facts], as to which it is contended that there exists a genuine issue to be lried . . . ." The rule goes on further t require that "[a]ll material facts set forth in the statement required by the moving party will be deemed to be admitted unless controverted by the statement served by the opposing party." In his response to Defen ts' statement of material facts, Plaintiff did not file a counter statement of material facts that complied with aI Rule 56.1. Instead, Plaintiff choose to respond to only ten of Defendants' forty-eight statements of mate' fact. Of those ten Plaintiff responded to, Plaintiff admitted seven and denied three. However, Plaintiff's urported denials do not correspond to the avennents set forth in Defendants' statement of material facts. Thus, in accordance with Local Rule 56.1, the court deems Defendants' statements of material facts to be admitted. James Bradley ("Bradley") is a police officer formerly employed by the Borough. Both Lebo and Bradley were trained as municipal police officers and both annually completed their in-service training. It is the policy, practice, and custom ofthe Borough Police Department ("Police Department") to use only the amount of force that the officer determines to be reasonable and necessary in making an arrest. In Cumberland County, the Sheriff's office provides copies of all outstanding bench warrants on arrtsts made by Borough police officers and requests the Police Department's a~sistance in serving those warrants. Those warrants are also published in thd local newspaper. In June of 2000, the Police Department had a copy of a bench warrant issued by Judge Hess for Plaintiff because of Plaintiff's failure to appear at a hearing. On the morning of June 14,2000, the Borough Council President asked Lebo why Plaintiff was still on the street when there was a bench warrant out for his arrest. The Police Departm~nt determined that Plaintiff had moved out of the Borough, but resided in Carlidle, Pennsylvania. When Lebo serves a bench warrant outside of the Borough, he no~ifies the local policing agency of his presence. On June 14,2000, Lebo contacted Carlisle's police department to inform the commanding officer that he was going to !arrest Plaintiff on the outstanding bench warrant. Aflbr notifYing Carlisle police, Lebo and Bradley proceeded to Plaintiffs residdnce in Lebo's private vehicle, a 1979 GMC pickup truck. Upon arriving at Plain~iff's residence, Lebo informed Plaintiff that they had a warrant for his arrest, read the 'Varrant, and walked Plaintiff out to the pickup. Plaintiff was handcuffed with! his hands in the front because he was cooperating. Upon approaching the ~ck, Bradley stayed with Plaintiff while Lebo went around to the driver's side of~e pickup. In an effort to resist being placed in Lebo's truck, Plaintiff grabbe4 the bed ofthe pickup and refused to let go despite being asked to 2 do so several times. Bradley tried to pry Plaintiffs hands loose and in so doing pulled Plaintiff and himself to the ground. Plaintiff hit the ground with his rear end fIrst. Once on the ground, Plaintiff resisted Bradley's and Lebo's attempts to remove his handcuffs and re-handcuffhim with his hands behind his back. On the ground, Lebo ~d Bradley struggled with Plaintiff but were eventually successful in getting his hands cuffed behind his back. At some point during this struggle, Plaintiff sustained abras~ons to the side of his head, his knees, and his left elbow. Plaintiff also sustained an injury to his shoulder. Once Bradley and Lebo got Plaintiffs hands behind his back~ they stood him up and put him in the truck. From there they proceeded to the booking center. At the time of the arrest, both Bradley and Lebo were dressed in!plain clothes. Pl~intiff admitted in his deposition that other than attempting to pry Plaintiff s fmgets off of the bed of the truck and attempting to move Plaintiff's anns behind his backlto be handcuffed, Bradley did not use any other force against Plaintiff to effedtuate his arrest. (Defs.' Ex. D, Burford Depo. at 75, Ins. 14-20.) Plaintiff knew at the time of his arrest that he was being arrested on an outstanding bench warrant. Ini~ially, Plaintiff f1!ed a civil action in the Court of Common Pleas of Cumberland CoUnty on May 31, 2002. Plaintiffs Complaint asserts claims for assault and battdry (Count I) and false imprisonment/false arrest (Count II) against Defendants Lebo and Bradley. Plaintiff also asserts a claim pursuant to 42 U.S.C. S 1983 (Count III)I against all Defendants for alleged violations of Plaintiff's Fourth, Eighth, and Foutteenth Amendment rights. Defendants removed the case to this court on Novem~er 19,2002. After discovery, Defendants f1!ed the instant motion for partial s~ judgment on August 8, 2003. ! 3 n. Legal Standard: Summary Judgment Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together ''lith 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." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., ~60 F.3d 228,231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 4 7~ US. 242, 248 (1986). A factual dispute is "genuine" only ifthere is a sufficient evi~entiary basis which would allow a reasonable fact-fmder to return a verdict for the non-moving party. Id. at 249. The court must resolve all doubts as to the existence ofa genuine issue of material fact in favor of the non-moving party. Gans v. Mundy, 762 F.2d 338, 341 (3d eir. 1985); see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Onf;e the moving party has shown that 1here is an absence of evidence I to support the c~ims of the non-moving party, the non-moving party may not simply sit back and res~ on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 US. 317, 3M (1986). Instead, he must "go beyond the pleadings and by his own affidavits, ~r by the depositions, answers to interrogatories, and admissions on file, and designajte specific facts showing that there is a genuine issue for trial." /d. (internal quotati~ns omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgrrjent should be granted where a party "'fails to make a showing sufficient to estaiblish the existence of an element essential to that party's case and on which that party Will bear the burden at trial." Celotex, 477 US. at 322-323. " 'Such affirmatIve evidence - regardless of whether it is direct or circumstantial- must amount to kore than a scintilla, but may amount to less (in the evaluation of the 4 court) than a preponderance.' " Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). III. Discussion Defendant Bradley argues that the court should grant him swnmary judgment as to ~ount I because the undisputed facts do not rise to the level of assault or battery. Additionally, Defendant Bradley argues that he is entitled to qualified imml$ty. As to Count II, Defendants argue that the court should grant swnmary judgnilent because the undisputed facts demonstrate that probable cause existed for Plauitiff's arrest pursuant to the outstanding bench warrant. Moreover, Defendants argqe that it was lawful for them to arrest Plaintiff at his residence in Carlisle, which ts located outside the Borough limits, because they notified the Carlisle police qepartment prior to arresting Plaintiff. In the alternative, Defendants argue that their lm'est was privileged because Defendant Lebo was, in addition to being the Boro~gh's police chief, a Cumberland County Detective with countywide jurisdiction. In the further alternative, Defendants argue that they enjoy a good faith qualified immurlity as long as their conduct did not violate a clearly established constitutional ritht of which a reasonable person should have known. Finally, Defendants argqe that the court should grant swnmaty judgment as to Count III because Plaintiff has failed to come fOlWard with evidence suggesting that the actions of Defendants ~bo and Bradley were taken pursuant to an official municipal policy. 5 For his part, Plaintiff agrees with Defendants' analysis of Count III and stipulates that Defendants are entitled to summary judgment as to that count. As to Counts I and II, Plaintiff argues that Defendants are 110t entitled to summary judgment as to these counts because Defendants were not privileged to make the arrest in question. Plaintiff argues that the court should remand the case back to state court for trial. Wijiliout further discussion, the court will grant Defendants motion for summary judgnient as to Count III, Plaintiff's ~ 1983 claims. For the reasons that follow, the court will grant Defendants' motion for partial summary judgment on Counts I as to Defendant Bradley and on Count II as to Defendants Lebo and Bradley. However, the court will remand the case back to state court for a trial on Count I as to Dtfendant Lebo. A. Count I Defendant Bradley argues that the court should grant summary judgment in his favor as t<iJ Count I because he did not use unreasonable force in order to effectuate Plaintliff's arrest. Under Pennsylvania law, an assault occurs when an actor , intends to cause! an imminent apprehension of harmful or offensive bodily contact. Sides v. Clelanl(, 648 A.2d 1081 (Pa. Super. Ct. 1994). Battery is defined as a hannful or offensive touching. Levenson v. Sauser, 557 A.2d 1081 (Pa. Super Ct. 1989). Perlnsylvania law has recognized that police officers are entitled to use some force in order to effectuate an arrest. Pursuant to ~ 508 of the Pennsylvania Crimes Code, mprucipal police officers in Pennsylvania are "justified in the use of any force which! he believes to be necessary to effect the arrest. . .." 18 Pa. Cons. i Stat. ~ 508(a). Moreover, in Pennsylvania a police officer is justified in committing i an assault when 1naking a lawful arrest, provided the force used is reasonable. See 6 Commonwealth v. Jayne, 11 Pa. Super. Ct. 459, __, 1899 WL 4395 at *3 (1899); Mosely v. Yaletslw, 275 F.Supp. 2d 608,613 (E.D. Pa. 2003) (noting that the proper test for evaluating an excessive force claim is one of objective reasonableness). The reasonableness of a particular use of force must be judged from the perspective of a reasonable police officer on the scene. Id. In PIe instant case, Plaintiff admits that the only force used by Defendant Bradley was th~t necessary to pry Plaintiff's hands from the back of the pickup truck and to move Plaintiffs anns behind his back to be handcuffed. (Defs.' Ex. D, Burford Depo. at 75, Ins. 14-20.) Based on this admission, the court concludes that no reasonable jury could find that Defendant Bradley committed assault and battery. Plaintiff has cO$e forward with no evidence suggesting that Defendant Bradley was not justified in $ing this minimal amount of force to effectuate Plaintiff's arrest. It was objectivelYireasonable for Defendant Bradley to pry Plaintiff's hands from the back of the pic~p truck and attempt to handcuff Plaintiff's hands behind Plaintiffs back when he nlalized that Plaintiff was not cooperating. Consequently, the court will grant Defendan~ Bradley's motion for summary judgment as to Count 1. B. Count II Defendants Bradley and Lebo argue that the court should grant summary judgment as to <tount II because there was probable cause and they were privileged to effectuate the: arrest in Carlisle. Pennsylvania defmes false arrest as (1) an arrest made without pljobable cause or (2) an arrest made by an individual without privilege to do so. McGlrifJv. Vidovich, 699 A.2d 797, 799, n.3 (pa. Commw. Ct. 1997). An individual is lial:jle for false imprisonment if "(a) he acts intending to confme the other or third person within boundaries fixed by the actor, and (b) his act directly or indirectly result~ in such a confmement of the other, and (c) the other is conscious of 7 the confinement or is harmed by it." Gagliardi v. Lynn, 285 A.2d 109, III n.2 (Pa. 1971). Additionally, "[a]n arrest based on probable cause [can] not become the source of a claim for false imprisonment." Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (citations omitted). It is undisputed that there was an outstanding bench warrant for Plaintiff's arres~ at the time Defendants Lebo and Bradley arrested Plaintiff. Consequently, *laintiff does not dispute that Defendants had probable cause at the time they arrested him. On the contrary, Plaintiff asserts that Defendants Lebo and Bradley were ntht privileged to effectuate his arrest in the Borough of Carlisle because they did not obtain the consent of Carlisle's chief of police. Specifically, Plaintiff argues that the ~nly evidence adduced by Defendants that they had the permission of Carlisle's chief pf police or his designee, was "the self-serving testimony of Defendant Lebd that he had contacted the Carlisle Police." (Pl.'s Br. in Opp. to Defs.' Mot. forlSum. J. at 3.) Pl~intiff's reasoning is flawed. First, while there is no indication that Carlisle's chief pf police actually consented, Plaintiff has failed to produce a scintilla of evidence suggesting that he protested Defendant Lebo's and Bradley's actions. i Moreover, both !Defendant Lebo and Defendant Bradley testified at their depositions that Lebo conta~ted the Carlisle police department en route to effectuating Plaintiff's arrest. (See De(s.' Ex. B, Lebo Depo. at 13, Ins. 8-14; Defs.' Ex. C, Bradley Depo. I at 5, Ins. 14-16.) Based on this contact, and absent any evidence to the contrary, it is not wrreasonable for the court to presume that the Carlisle police department gave their consent to flaintiff's arrest. 8 Second, in opposing a motion for summary judgment, Plaintiff cannot simply deny Defendants' allegations. Rather, he must "go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324 (internal quotations omitted); see also Saldana, 260 F:.3d at 232. Here, Plaintiff has come forward with no evidence suggesting that ~here is a genuine issue as to whether the Carlisle police department consented to DMendants' arrest of Plaintiff. Both Defendants Lebo and Bradley testified in theil[ deposition that Defendant Lebo contacted the Carlisle police , department. Pl~intiff cannot merely label this testimony "self-serving" and expect the court to deny Defendants' motion for summary judgment. Absent any evidence to the contrary, the court finds that there is no genuine issue of material fact as to this Issue. UJj.der Pennsylvania law, a municipal police officer has statewide jurisdiction to s~rve a bench warrant outside of his municipal jurisdiction if he receives the perjrnission of the chief law enforcement officer of the municipality wherein that warrant is served. 42 Pa. Cons. Stat. S 8953(a)(1). Because there is no genuine issue of material fact that Defendant Lebo contacted the Carlisle police prior to arresting Plaintiff, Defendants Lebo and Bradley are entitled to judgment as a matter of law on Count II of Plaintiff's complaint. IV. .c..~nclusion B~sed on the foregoing, the court will grant Defendants' motion for summary jud~ent on Count I as to Defendant Bradley, Count II as to DefendantsÿBradley and Lebo, and Count III as to all Defendants. The only remaining claim is , Plaintiff's clainj. for assault and battery against Defendant Lebo. Pursuant to 28 9 V.S.C. S 1367(c)(3), the court will decline to further exercise its supplemental jurisdiction in this matter. Accordingly, the court will remand the captioned matter back to the Court of Common Pleas of Cumberland County. Because the court declines to further exercise its supplemental jurisdiction, Defendants' motion in limine filed September 19, 2003 is moot. An appropriate order will issue. ~srv\via fl. R~bo ~y Vla H. Ram 0 United States District Judge Dated: November 5,2003. , . . \-If/-.,lvmlSNN3d iJNnO:J:\(r.E81A1no +>'1'11' ",I . '~'/ "0 ,,' oh hr) L-/\Ul t,' A8VlC'I>IC. .:. ;:,10 j~=)i.~L';(}' ':J.~ AO 450 (Rev. 5/85) Judgment in a Civil Case United States District Court MIDDLE DISTRICT OF PENNSYLVANIA JUDGMENT IN A CIVIL CASE GARY BURFORD Case No: 1 :02-CV-2082 Plaintiff V. DUANE LEBO, an aClult Individual, and DUANE LEBO, ~ his capacity as former Chief of Police of the, Mount Holly Springs Police Department; Mount Holly Springs Borough; James Bradley, and adult individual, and JAMES BRADLEY, in his offJ,;ial capacity as an Officer of the Mount Holly Springs Police Department Judge Sylvia H. Rambo C"rtlfled from the record I/~S-'o Di~t. Mary E. D'Andrea, CI rk por Defendants puty Clerk D Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. 181 Decision by Court. This action came to trial or hearing before the court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED summary judgment be and is hereby entered in favor of Defendant James Bradley, in his official capacity as an Officer of the Mount Holly ~prings Police Department and against the Plaintiff, Gary Burford as to Count I. IT IS FURTHER ORDERED that summary judgment is hereby entered in favor of all defendants, DUANE LEBO; Duane Lebo, an adult Individual, and DUANE LEBO, in his tapacity as former Chief of Police of the Mount Holly Springs Police Department; 1\J10unt Holly Springs Borough; James Bradley, and adult individual, and JAMES ~RADLEY, in his official capacity as an Officer of the Mount Holly Springs Polic~ Department as to Counts II and III. Date: November 05, 2003 Mary E. D'Andrea, Clerk of Court Isl Mark J. Armbruster (By) Mark J. Armbruster, Deputy Clerk 'vWv'^lASNN3d AlNnO~i (i!\,ni:EJ8/11lnO 9'1 :. W\i L - liON SO b AC:lV1C:i'." ,:.J..U :10 3:JI:i.:jO'fEll:.j rOId..... . - pennsylvania Middle District ersion 1.0 - Docket Report HBG,CLOSED ~ ?to. 0,( , .2a (. U.S. District Court Middle District of PennsylVania (HarrisbUrg) IVIL DOCKET FOR CASE #: 1 :02.,cv.02082-SHR Internal Use Only Burford v. Lebo, el al Assigned to: Judge sylvia H. Referred to: Demand: $0 Lead Docket: None Related Cases: None Case in other court: None Cause: 42:1983 Civil Rights Act Date Filed: 11/19/02 Jury Demand: Both Nature of Suit: 440 Civil Rights: Othet Jurisdiction: Federal Question V. tiom i\W tecord j" CO ~~...- D,,~e ""x_~~-r'~' .._, _ i.};:,~"'J ~ Dltl-t1U\eC~1 :.../,1'-" ~" .;l-. , represented by Katl E. Rominger 155 S. Hanover Street Carlisle, PA 17013 717_241-6070 LEAD ATTORNEY A TTORNEY TO BE NOTICED Plaintiff ..................................... Gary Butfotd \':,';'r ~ ()0!".(. Defendant ....................-............. Duane Lebo, an adult ndividual, and DUANE LEBO, in his capacity s former Chief of police of the Mount H IIy Springs police Department represented by James D. Young Lavery, Faherty, Young & Patterson, P.C. 225 Market street, suite 304 P.O. Box 1245 Hatrisburg, PA 17108-1245 717_233-6633 Email: iyoung@laVerylaw.cOm LEAD ATTORNEY ATTORNEY TO BE NOTICED o 01. Mount HollY spring Botou9h, the represElnted by James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED 08/011 James Btadley, an adult individual, and JAMES BRADLEY, in his official capacity as an officer of the unt Holly springs police Department represented by James D. Young (see above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED 07/3 Docket Text Filing Date # 1 PETITION FOR REMOVAL from cumberland County court of Common Pleas, C Number: 02-2666. Copy of c:omplt attached. Jury Trial Demanded. N/C to ens\. R 08/08/2 08/08/2C 11/19/2002 _ .__, hin/nktRot.p\?65557 4'984130859-L_795- 0-1 -----1 Mary E. D'Andrea Clerk UNITED STATES DISTRICT COURT Middle District of Pennsylvania Office of the Clerk, Room 1060 P.O. Box 983 Harrisburg, PA 17108 717-221-3920 November 5, 2003 Robert C. Gwin, Clerk of Courts Cumberland County Coqrt of Common Pleas One Courthouse Square Carlisle, P A 17013 IN RE: Guy Burford vs. Duane Lebo, et al. Civil Action No. 02-2082 Dear Mr Gwin: I have enclosed both a certified copy of our docket sheet and the Court's Order and Judgment dated November 5, 2003 which remands this matter to the Court of Common Pleas of Cumberland County. Please acknowle~ge receipt of these items at the bottom portion of this letter and return at your earliest convenience. Thank you for ydur attention in this matter. Very truly yours, /Z;'~~ Mark 1. ~ster Deputy Clerk Enclosures RECEIPT I hereby acknowl~dge receipt this _7 E day of '1ttrve.~2003. sQ;t~ Q 'nwk~, ~ 'v'INltAl;'SNN3d I ','fn,--n ,." ''-/-'';''Q"""" Al..lf!".,. ' "',' i'.':.~_rv IV ~ '1 :II fnl L - 11v.'1 [;0 b J..f!V1CN_"j" dO 3JfJ:.'()-U.:] GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTIOK - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED MOTION TO WITHDRAW AS COUNSEL AND NOW, comes the undersigned counsel and for his Motion to Withdraw as Plaintiffs Counsel in this matter states to the Court as follows: I. Plaintiff originally hired undersigned counsel to represent him in a lawsuit he initiated on or about May 31, 2002. 2. Plaintiff wants to represent himself. 3. Plaintiff and undersigned counsel have irreconcilable differences. 4. Plaintiff wishes to dismiss his counsel in regards to all dealings with his case. (Exhibit "A"). WHEREFORE, the undersigned counsel respectfully requests that this Honorable Court grant his Motion to Withdraw as Counsel in the above captioned matter. Date: February 24, 2004 Respectfully submitted, ROMINGER, BAYLEY & WHARE # /~ -~ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney fc)r Plaintiff GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 02-2666 : JURY TRIAL DEMANDED VERIFICATION I verify that I am the petitioner and that the statements made in the foregoing Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. s. 9 4904, relating to unsworn falsification to authorities. Date: February 24, 2004 ~ Karl E. Rominger, Esquire " GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendants, do hereby certify that I this day served a copy of the Motion to Withdraw as Counsel upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, P'~nnsylvania, addressed as follows: James D. Young, Esquire LA VERY, FAHERTY, YOUNG & PATTERSON, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108 Guy Burford 424 North Hanover Street Carlisle, P A 17013 -/ Dated: February 24, 2004 Karl E. Rominger, Esquire Attorney for Plaintiff To: Karl Rominger From: Guy W. Burford 2/04/04 I (Guy W. Burford) dismiss you (Karl Rominger) from any and all future dealings involving my lawsuit against Duane Lebo and James Bradley. Any correspondence or telephone inquiries will be directed to; Guy W. Burford 424 N, Hanover Street Carlisle, Pa. 17013 (717) 241-9482 I am also requesting to have possession of any and all information dealing with the depositions which have already been taken in regards to this matter. The info includes but is not limited to: 1. Guy W. Burford 2. Duane Lebo 3. James Bradley 4. Simon Jackson 5. Steve Whistler Guy W. Burford jJ !.-I; Date - .~ r .' [J V'\ , fl 'f. >,;' ~,-,~,-' i / ,1 " Ii . , f., (I ') -c' (Karl Rominger _ :----:.... Date U - eLl , / Ey -1/b/ z;' //1 /I !- c/_ C5~ o ,- . .... ...., = ~~ ~l P1 c;.v f'..> .r:- o " -.1 :<: rnfJd -n 1"'11 :;/;9 S~(? .~~ . .:-: ..." r:;) (n 0", GUY BURFORD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department,: and JAMES BRADLEY, : an adult individual and JAMES BRADLEY, in his: capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants NO. 02-2666 CIVIL TERM ORDER OF COURT AND NOW, this 1 sl day of March, 2004, upon consideration of the Motion To Withdraw As Plaintiffs Counsel, a Rule is hereby issued upon Plaintiff and Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY THE COURT, . Wesley Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff V!j\fVlr~\':?N'i'\!~~d ',"'i'l'-V) <',' C'.I1' "!"'"n''' I .tI'ir 1,.,1. . ;'\',"~]~;;':;{", V S I :8 !.Jd 2- tlV1-1 ~aoz l'1"r"""'IO"d ::i'!' 10 "J '/.!..:,.,,;j\r,JrI_, ':I .."lr 1 :.... :18H,:Q-'031!:J James D. Young, Esq. 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 Attorney for Defendants Guy Burford 424 North Hanover Street Carlisle, PA 17013 Plaintiff :rc ~ - ~ 3.0.:2-.0'1 SL, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case; (Check one) ( X ) for Jury trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE DUANE LEBO, an adult individual. And DUANE LEBO, in his capacity as Former Chief of Police of the Botough ( X) Civil Action - Law Of Mt Holly Springs Department, and JAMES BRADLEY, an adult individual, and ( ) Appeal from Arbitration JAMES BRADLEY, while serving with the Police Department of Mount Holly Springs Plaintiff) vs. GUY W. BURFORD The trial list will be called on _(4-6)J.2b( and Trials commence on .-<5-3) () L( (Defendant) Pretrials will be held on _( 4-14 L4..\.t (briefs are due five days before pretrial.) vs. DUANE LEBO & JAMES BRADLEY (The party listing this case fot trial shall ~ provide forthwith a copy of the praeface to all counsel, pursuant to local Rule 214.1. ) No. 02-2666 Civil 19 Indicate the attorney who will try case for the party who files this praecipe: Guv W. Burford (self reotesentation) Indicate trial counsel for other parties if known: James D. YounQ This case is ready for trial. Date:_3/9/04_ kicrvJ Q ~: \'.::,'U n:(' .;7-... 52r' ~',: ~~~~ .c~.l =< '"'" = = J:" ;:E: -,... Si:> I VJ -a o -., ...., ~-- r-lip -nrn :J:JI.,,'" o ..-19 "'r- ., ~~5 t~l-n ._;... Ul o ~::I ~~ je. btY ~"' BV'<fd- f e j ~~~ a~~v~ ~a"1Et a~:::: ~V)~ o '~",i ~ j,. ejf'lfSPY'- ~IO I ) f' I'VI Q'9 f-v O'INI i I ' JJ l~ 4'\. @o "\ J'1\'\')t" }' \JJ . [n the Court of Common Pleas of Cumberland County, Pennsylvania No. ()~) -), 60 Civil. 19 To 11) m V C" "". Prothonotary l'Jj 2,06 + ~W, A~~ ,,,' .'ff -:?:.-: u,.;" ~: r:~~1 ~.t:c. 0'--, Ie cJif uJ iT h~ - ~~- r-' v_ o r- ~. - ~ ."~ c\.... r- - ~, '~. :;r; C'> = c-J No. Tenn, 19 _ vs. PRAECIPE Filed 19 , Atty. ~ ~ \r, -...> ..;.<:> ~ y - GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRIAL DEMANDED MOTION TO MAKE RULE ABSOLUTE AND NOW, comes the undersigned counsel and asks this Honorable Court to make his Motion to Withdraw as Counsel in the above case absolute and avers as follows: I. Counsel filed a Motion to Withdraw as Counsel on February 24, 2004. 2. A Rule was issued on all the interested parties to show cause why the motion should not be entered as an Order of Court . 3. The time has elapsed for any objections to be raised as to counsel withdrawing his appearance. WHEREFORE, the undersigned counsel prays this Honorable Court make the Rule Absolute and allow him to withdraw from the above captioned case and direct the Prothonotary to mark counsel's appearance as withdrawn. Date: April 6, 2004 Respectfully submitted, ROMINGER, BAYLEY & WHARE 2m"',,,, E"'!wre 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ~ ---, GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants : JURY TRlAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Motion to Make Rule Absolute upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Dated: April 6, 2004 James D. Young, Esquire LA VERY, FAHERTY, YOUNG & PATTERSON, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108 Respectfully submitted, ROMINGER, BAYLEY & WHARE ~- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PAl 70 I 3 (7 17) 24 I -6070 Supreme Court ID # 8 I 924 Attorney for Plaintiff , () ....., 0 = en C:;) .1 ?:::: ...- ". ~ -:,1 ..L" :;..; r:'f;:'; I -ni-Tl i'5'? = ~:~1~/ 7~" ~-j:!J ) _'h ' ,0 ( ~:Snl C.: '-0 -. ~~ ")~ .z;:- ~~ 0 GUY BURFORD, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, P A vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT, DUANE LEBO'S MOTION TO STRIKE CASE FROM THE MAY, 2004~ TRIAL LIST AND NOW, comes Defendant, Duane Lebo, by and through his attorneys, Lavery, Faherty, Young & Patterson, P.c., and files this Motion to Strike this Case from the May, 2004 Trial List and in support thereof, avers as follows: 1. Local Rule 214-1 governs the practice with respect to listing a case for trial and provides as follows: "A case shall be listed for trial only by filing a praecipe in duplicate directing the prothonotary to list the case for trial. The party listing the case for trial shall provide forthwith a copy of the praecipe to all counsel. The praecipe shall be in a form prescribed by the prothonotary." 2. Pursuant to Local Rule 213-2, "at the call of the trial list, counsel for all parties shall indicate that discovery has been completed, that all pre-trial actions have been taken, and that the case is ready for trial in all respects. Any case not ready for trial in all respects shall, at the option of the court, be placed at the foot of the list or stricken from it." 3. In this civil action, Plaintiff is currently represented by counsel, but there is a pending Motion by Attorney Rominger to withdraw as counsel. 4. On Tuesday, April 6, 2004, Mr. Burford, proceeding pro se, called this matter for trial during the May, 2004 Civil Jury Term. 5. Since Plaintiff was represented by counsel, he could not also proceed pro se. Thus, Mr. Burford's attempts to call the matter for trial were void ab initio. 6. In the alternative, Plaintiff failed to comply with the requirements of Local Rule 214-1 in that he failed to provide a copy of the praecipe and/or to otherwise notify undersigned defense counsel of his intention to list this matter for trial during the May, 2004 Civil Jury Term. 7. Had Plaintiff complied with the requirements of Local Rule 214-1, then undersigned defense counsel would have appeared at the call of the trial list and would have indicated that all pre-trial actions have not been completed and that the case was not ready for trial in all respects. 8. In that regard, Attorney Rominger's Motion to Withdraw as Counsel was still pending for disposition before this Honorable Court at the time that the Plaintiff called this matter for trial. Moreover, Defendant Lebo intends to pursue a Motion for Summary Judgment on the sole remaining claim (assault and battery), but had deferred the filing of the dispositive motion pending adjudication of Attorney Rominger's Motion to Withdraw as Counsel. 2 9. Due to the lack of notice of the intention to list this matter for trial, undersigned defense counsel has been unable to confirm the availability of the remaining Defendant, Duane Lebo, and! or any fact witnesses for the May, 2004 Civil Term. Thus, Defendant, Duane Lebo's substantive rights could be severely prejudiced by Plaintiff's failure to comply with the notice provisions of Local Rule 214.1. 10. Defendant, Duane Lebo's anticipated Motion for Summary Judgment may obviate the need for a trial on the only remaining claim in this civil action. Thus, removing this case from the May, 2004 Trial List would promote judicial economy and may obviate the need for an unnecessary trial. 11. This civil action has not previously been listed for trial and Plaintiff's substantive rights will not be prejudiced if this case is removed from the May, 2004 Trial List. WHEREFORE, for the reasons advanced herein, Defendant, Duane Lebo, respectfully requests that this Honorable Court grant his Motion to Strike this Case From the May, 2004 Trial List and enter the accompanying Order. 3 Respectfully submitted, Lavery, Faherty, Young & Patterson, P.c. By: J es D. You 225 Market S P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-'7003 (facsimile) Atty No. P A53904 jyoung@laverylaw.com Attys for Defendant, Duane Lebo DATE:~ 4 A ITORNEY VERIFICA nON James D. Young, Esquire, hereby states that he is counsel for Defendant, Duane Lebo, and that the statements made in the foregoing are true and correct to the best of his knowledge, information and belief, based upon client interviews and review of documents relevant to the claims and defenses herein. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. Date: ~ It) !10VY ~~u, Attorneys for Defen ant, Duane Lebo 5 CERnFICATE OF SERVICE I, James D. Young, an attorney with the law firm of Lavery, Faherty, Young & Patterson, P.c., do hereby certify that on this 14th day of April, 2004, I served a true and correct copy of the foregoing Defendant, Duane Lebo's Motion to Strike Case from the May, 2004 Trial List via hand delivery, as follows: Guy Burford 424 N. Hanover Street Carlisle, PA 17013 (delivered to Mr. Burford at the Pre- Trial Hearing) Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 (delivered to Mr. Rominger at the Pre- Trial Hearing) 6 o c:- .-".. r,'C 'f? o r-o.) I"-~) =, = ~- ,~ --::::; ;;<:J ,- .' " ::;:! ni:rJ t--- ,.. iTl :0,:,"1 i'''l :' ,- (") "'f- ) ~_:l -, ("', nl c- 7>',' --{ GUY BURFORD, Plaintiff vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A NO. 02-2666 CIVIL CIVIL ACnON - LAW JURY TRIAL DEMANDED ~ ORDER AND NOW, this ~ day of April, 2004, upon consideration of Defendant, Duane Lebo's Motion to Strike Case from the May, 2004 Trial List, and Plaintiff's response, if any thereto, it is hereby ORDERED, ADJUDGED and DECREED that said Motion is granted and this matter is hereby removed from the May, 2004 Trial List. ~~ fJt\~"D~ O,q' \ BY THE COURT: J. - )J1\1("'."- ~.. ".1 .;, !:.). / I. "/\10J L C :01 I!\! l; I iJd~ tiCal Aj1iJ.Ci<U>110C;d ;Hl :10 ?j8LUo-o:n!,~j GUY BURFORD, Plaintiff Ay alU04 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA o vs. : CIVIL ACTION - LAW : NO: 02-2666 DUANE LEBO, an adult individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer ofthe Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this .rilietay of ~, 2004, upon consideration ofthe attached Motion to Make Rule Absolute, the Motion is granted and the Prothonotary's Office is ordered and directed to withdraw the appearance of Karl E. Rominger, Esquire in the above By the Court: captioned case. Distribution: ./Karl E. Rominger, Esquire /lames D. Young, Esquire '1 } t.,,' '"~,I, ", !,:,~,.',,~, '; "~,I :,>~j\7..~\,~)';\ii ,1'-. A, - \/\'n:) IS :2 bid lJ I ~JV ?DllZ ,~b'/lCt\/Ui-I.LCt./d -~/.11 :fa :!::H:,!:IO-{}::J7!:! GUY BURFORD, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, P A vs. DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT, DUANE LEBO'S MonON FOR SUMMARY JUDGMENT AND NOW, comes Defendant, Duane Lebo, by and through his attorneys, Lavery, Faherty, Young & Patterson, P.c., and files this Motion for Summary Judgment and in support thereof, avers as follows: L This civil action was initiated by the Plaintiff, Guy Burford, by the filing of a Writ of Summons on May 31, 2002, in the Court of Corrunon Pleas of Cumberland County. 2. Pursuant to a Rule issued by the Cumberland County Prothonotary's Office, on October 22, 2002, Plaintiff filed a Complaint a~;ainst Defendants, Duane Lebo, James Bradley and the Mount Holly Springs Borough, containing three counts and seeking compensatory and punitive damages, costs, interests and attorney's fees. 3. Plaintiff's Complaint attempted to assert claims for assault and battery (Count I) and false imprisonment! false arrest (Count II) against Defendants Lebo and Bradley. In Count III of the Complaint, Plaintiff attempted to assert claims pursuant to 42 U.s.e. ~ 1983 against all defendants for alleged violations of Plaintiff's Fourth, Eighth and Fourteenth Amendment rights. 4. On November 19, 2002, Defendants removed this civil action to the United States District Court for the Middle District of Pennsylvania by filing a Notice of Removal Pursuant to 28 U.S.e. ~ 1441 (b) , Thereafter, Defendants filed an Answer to Plaintiff's Complaint denying any and all liability to the Plaintiff and asserting various affirmative defenses, including the individual defendants' immunity from liability under federal and state law. 5. During discovery in the federal court proceedings, the parties completed the deposition of Defendant, Duane Lebo. A true and correct copy of the transcript of the deposition of Duane Lebo is attached as Exhibit U AU in the Appendix of Exhibits and is incorporated by reference as if fully set forth at length herein. 6. During discovery in the federal court proceedings, the parties completed the deposition of Defendant, James Bradley. A true and correct copy of the transcript of the deposition of James Bradley is attached as Exhibit uBu in the Appendix of Exhibits and is incorporated by reference as if fully set forth at length herein. 7, On August 8, 2003, Defendants filed a Motion for Partial Summary Judgment, a Concise Statement of Undisputed Material Facts and a supporting Brief in the United States District Court for the Middle District of Pennsylvania. 2 8. On or about September 10, 2003, Plaintiff filed a Brief in Opposition to Defendants' Motion for Partial Summary Judgment in federal court. In that responsive brief, Plaintiff acknowledged that the federal civil rights claims asserted against all three Defendants in Count III of the Complaint should be dismissed and summary judgment granted in favor of the Defendants. Plaintiff did oppose, however, the Defendants' dispositive motion on the pendent state law claims. 9. By Memorandum and Order dated November 5, 2003, United States District Judge Sylvia H. Rambo granted Defendants' Motion for Partial Summary Judgment. Judge Rambo directed the clerk of court to enter judgment against Plaintiff and for Defendant as to County I and against Plaintiff and in favor of all Defendants as to Counts II and III of the Complaint. Pursuant to 28 U.s.e. ~ 1367(c)(3), the district court declined to further exercise its supplemental jurisdiction on the remaining claim against Defendant Duane Lebo. True and correct copies of Judge Rambo's November 5, 2003, Memorandum and Order are attached as Exhibit C in the Appendix of Exhibits and are incorporated by reference as if fully set forth at length herein. 10. On November 5,2003, Mark J. Armbruster, Deputy Clerk for the United States District Court for the Middle District of Pennsylvania, entered judgment in accordance with Judge Rambo's Memorandum and Order. A true and correct copy of that judgment is attached as Exhibit "D" in the Appendix of Exhibits and is incorporated by reference as if fully set forth at length herein. 11. Plaintiff did not file any appeal of Judge Rambo's decision to the United States Court of Appeals for the Third Circuit, 3 12. Plaintiff's assault and battery claim (Count 1) against Defendant, Duane Lebo, was remanded to this Honorable Court. 13. Pursuant 18 Pa.e.S.A. ~ 508(a), police officers in Pennsylvania, such as Defendant Lebo, are entitled to utilize reasonable and necessary force to effectuate a lawful arrest. 14. Since the United District for the Middle District of Pennsylvania has already determined that Plaintiff's arrest on June 14, 2000, was lawful and dismissed the false arrest! false imprisonment claims, the doctrines of collateral estoppel and! or res judicata preclude Plaintiff from re-litigating those issues and! or claims in this Honorable Court. 15. Pursuant to the Political Subdivision Tort Claims Act, 42 Pa.e.S.A. ~ 8541 et. seq., Defendant Lebo enjoys an immunity from liability unless his actions fall within one of the eight (8) exceptions to immunity enumerated in ~ 8542(b) or unless his conduct constitutes a crime, fraud, actual malice, or willful misconduct pursuant to ~ 8550. 16. Pursuant to Rule 1035.2, Pennsylvania Rules of Civil Procedure, summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. 17. There are no genuine issues of material fact and moving Defendant, Duane Lebo, is entitled to summary judgment as a matter of law on the assault and battery claims set forth in Count I of Plaintiff's Complaint. 4 WHEREFORE. Defendant, Duane Lebo, respectfuHy requests that this Honorable Court grant his Motion for Summary Judgment and enter judgment in his favor and against Plaintiff. Respectfully submitted, Lavery, Faherty, Young & Patterson, P.e. By: J es D. Youn ,Es ire 225 Market Street, Suite 304 P,O. Box 1245 Harrisbmrg, PA 17108-1245 (717) 233.,6633 (telephone) (717) 233..7003 (facsimile) Atty No. P A53904 jyoung@Iaverylaw.com Attys for Defendant, Duane Lebo DATE: July 22, 2004 5 CERnFICATE OF SERVICE 1, James D. Young, an attorney with the law firm of Lavery, Faherty, Young & Patterson, P.e., do hereby certify that on this 22nd day of July, 2004, I served a true and correct copy of the foregoing Defendant, Duane Lebo's Motion for Summary Judgment, via U.S first-class mail, postage pre-paid, as follows: Guy Burford 424 N. Hanover Street Carlisle, PA 17013 ~~ . Young, Esquire 6 ('j c.; - "-, c::::> c~::> o .'0 '.... f-h:n C' r-n (:7 c". r'-,) W -ry <;,? PRAECIPE FOR LIStING CASE FOR Aac,UMENT (Mullt be typewritten and aubldtttd ill dui~ta) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: P~ liat the within lIlIltter fOt: the ~ Ar~t COUrt. -----------------------------------------------------------..--------------------------- CAPTION OF CASE l entire <2IPtion mua t be St/llted in fUll) GUY BURFORD, vs. ( p)..aintUf) DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the (DlIflllldllnt) Mount Holly Springs Police Department, and the MOUNT HOLLYio. 2666 SPRINGS BOROUGH, CivilJ. 2002 L State matter to be ~ (i.e., plaiIltiff'. rrPti.l:lO for.- trial. defe:mant's demUrJ;er to ~t. etc.): Defendant. Duane Lebo's Motion for Summary Judgment 2. Identify cx:unsel ..ro will argue cmse' (a) for plaintiff: Guy Burford ~ _; 424 N. Hanover Stre,et Carlisle. PA 17013 ('0) fordllf-mnt: James D. Young. Esquire ~~: Lavery, Faherty, Young & Patterson. P.C. 225 Market Street, SUlte 304 P.O. Box 1245 Harrisburg. PA 17108-1245 3. I v.Ul notify all partiM in writing within t:w:l d~'lI that this case hD8 been listed for ~t. -t. ~t court OIIte: September 22. 2004 Clsted; July 22. 2004 At ()rrJJ) uane Lebo CERnFICATE OF SERVICE I, James D. Young, an attorney with the law firm of Lavery, Faherty, Young & Patterson, P.e., do hereby certify that on this 22nd day of July, 2004, I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument, via U.S first-class mail, postage pre-paid, as follows: Guy Burford 424 N. Hanover Street Carlisle, PA 17013 J'm"~~ 3 GUY BURFORD, Plaintiff IN THE COURT OF COMMON PLEAS vs. CUMBEH,LAND COUNTY, P A DUANE LEBO, an adult individual and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual and JAMES BRADLEY in his capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants NO. 02-2666 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED APPENDIX OF EXHIBITS IN SUPPORT OF DEFENDANT, DUANE LEBO'S MonON FOR SUMMARY JUDGMENT Exhibit A Transcript of the deposition of Duane Lebo Exhibit B Transcript of the deposition of James Bradley Exhibit C Judge Sylvia H. Rambo's November 5, 2003, Memorandum and Order Exhibit D Judgment entered in favor of Defendants and against Plaintiff in the United States District Court for the Middle District of Pennsylvania 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NO. 1:CV-02-2082 ~![g @ @ 0107 ~il ~( i JUL - 8 2003 !,': II .. "I I'i" I _ I"r IQ<6'5-/5lflJ' JUDGE 'SYLVI'A-'H-;--'RAiMB0... MINUSCRIPT 1 GARY BURFORD, Plaintiff, 2 v. 3 4 DUANE LEBO, an adult individual, and Duane Lebo, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual, and JAMES BRADLEY, in his official capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants. 5 6 7 8 1 JURY TRIAL DEMANDED 9 t~~V Deposition of: DUANE L. LEBO Taken by: Plaintiff Before: Jennifer L. Sirois, Court Reporter, Notary Public Date: May 27, 2003, 2:05 p.m. Place: Rominger & Bayley 155 South Hanover Street CarliSle, Pennsylvania EXHlSrr I A ~ GlRY BURITRD, P~aintiff, NJ. 1:CV-02-2082 ", rlffiJ\Jt :'EBJ, .~~ adult ind.:vidual, 4 and wane Lebo, in his capacity as fo.rmer Chlef of Pollee of the 5 M:lun~ Holly Springs Police I:epanment, and JAMF.S BRADLEY, 6 an adult individual, and JAME'S BAADLEY, in his official capacity 7 iJ.S an Officer of :.he M:Junt Hall y Springs Police Dapartmant, and 8 the KUNr f-OLLY SPRlNGS ECRaJGi, Defendants. JUI::GE SYLI!lA H. R.llMBJ JURY 'IRIAL DfW>NDED 10 11 12 13 14 :eposition of: IUlNI!: L. ~ Taken by: Plaintiff 15 :'6 Before' Jennifer L. Sirois, Court Reporter, Notary Public Date: May 27, 2003, 2:05 p.m. PLace: Rar.inger & Bayley 155 South Ha.1over Street CarliSle, Pennsylvania 18 19 20 21 22 23 24 2S 1 2 DEKN",m 3 wane L. L2to 4 5 6 7 8 J1D:X ro TESTI>Cm EXA~TIO.J PACE 4 By Mr. Raninger .Lv :1 ~ 2 NJ. J1D:X ro iOOOBl'I'S DESCRIE'TIOIl PACE :'3:None.) 14 15 " 17 ~ 2 20 n 22 23 24 25 1 APPE:ARAN:i::S: 2 3 RCMINGER & Bl\YLEY BY: KARL E. fO.1INGER, ESCUlRE feR - PIAINTIFF 4 5 LAVERY, rnHERTY, YOJNG & PATI'ERSCN, p . C . BY: .w.1ES D. IDJi'K;, ESQJlRE feR - DEf'ENDIl.NTs 6 N.SJ PRESENT: MIGl/\EL WHW, GJY W. BlrRFCRD and J7IME'S P. I3AAIlLEY 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 STmlUI:rIal It is hereby stipulated by and betw:en the 3 re.spective parties that signing, sealing, certification and 4 filing are W3.ived; and that all objections except as to the 5 fonn of thE q,Jestion are reserved until the time of trial. 6 ~ L. Im:l, called as a witness, being duly 8 5-.Orn, was 2Xamined and testified as follows: 9 10 - 11 BY t-R. RO{[NGER: 12 Q. Can you give your name and address for the 13 record, sir~) 14 A. D..Jane Lebo, 661 West Old York Road, Carlisle. 15 Q. ):.nd you heard the instructions on Mr:. Burford's 16 deposi tion about __ 17 A. Yes, 1 did. 18 Q, -- al:x:ut those things. It's pret~y rruch go1:1g 1 9 to run the S3llle way. JUSt le~ rre ask the W'lole questior: 20 before you alSv.er, I'm going to assurre you understand the 21 question unl'3Ss you tell rre otherwise and if you don't 22 understand and you want me to rephrase, go ahead and ask 23 and I will. 24 Your counsel may object also, and if that 2S happens, let us wrangle it out in tl',at event before yol: 1 ans...€r. Now, at the tirre relevant in this suit back in, I 2 guess it was back in 2000, you were the Olief of Police for 3 r-tJun;:: Holly Springs Borough? A :;~a:' 5 (""...orrec: ~ Q.!-lovJ ':"ong did :you hold that position? 6 A. I was arployed there for 17 years. I was acting 7 chie~ for, I think it was a year and then praroted to 8 chief, so trlat was 15, 16 years. Q. Sc you \-.ere the chief for probably over 15 \""c3r-.5? 11 A Yes. 12 Q. Now, a,- the tiJre back if' 2000, hew many : 3 arployees die you have? ] ~ A. There was three full-tL"!l2 ai)d t.'":ree part-:im2. . ~ ~ oon t kna.-..' ae that time hew many we had. 16 ~,RD1INGER: Can we go otf the record for a 1"1 minute? "8 (Off the record.) (Whereup:lD, Mr. Burford arrived ) IS '" ~. ROvlINGER' We, just so you !mew, Mr. 21 Burford, v.,e've J~s: started with the chief, just getting 22 into )"'.is qualifications and history, so we haven't covered 23 any of the events in question yet. ;:; 4 BY I>-R F01INGER: 25 Q" Three fUll-tirre, tr.ree part-tirre erployees. Did 1 utility belt at all? 2 '" Yeah. 3 Q. Wr.at color are the deparonent' 5 uniforms? 4 A. Gray, the other officers are gray; and actually 5 mine was v.klit.e uniform shirt and black slacks, and the 6 of Leers v.ore 51ate gray shirts and black pants. .., Q Tell me about Wlat happened on the, back in June 8 of 2000, hew it is you came :0 Carlisle. 9 fl. Okay. 10 Q. Tell me al:xJut ....nat happened back in June of ".1 2000, ho,.,r you came to :::arl.isle, this incident that v.e've 12 been talking arout. 13 A. lItJenever there's a bench warrant issued for 14 saneone that v.e've arrested, v.e get a copy of that warrant. ] 5 We had a copy of the warrant for Mr. Burford, and these 16 warrants are also published in the paper. And a nlJll'ber of 17 people had carmented to us t.'lat, I-J'.y Burford's still 18 walking around; I saw there's a warrant for him listed if. : 9 the paper and I see him walking around Carlisle. 20 And in the IT'Orning in q.JeSt.lOD, I "" bel ieve -- O:C.""leer Bradley and I '....ere speaking 22 earlier -- we received a call or a visit frern council 23 president v.tJo said that he'd seen Guy in on North Hanover 24 Street.. We had also heard t.r.at G..iy Io.\3S living in there in 25 an apartment s::ne...tlere. And I don't knew ..mere W2 did the 1 the -- hew rrany squad cars did yoJ have? 2 A. 1W:J. 3 Q. 'I\..o cars. No.-I, in June of 2000, were either of 4 those cars in for repairs? 6 5 A.. I'lo. 6 Q. Okay. No,.,r, describe for me ....nat kind of 7 training you had over, say, the last ten years ....nile you 8 \-.ere stiL chief? A.. 0-" If()f. 10 Q" No: every detail, but if there's sane routine, 11 like, as a lawyer I have to take 12 credit hours a year. 12 A.. O:ficer safety. 13 Q.!-{(l,.,I often \..ClIlld you go to class? 14 A. Annually, every year we we.nt back and qualified. 15 Q. And you were tested? 16 A.. Yes. 17 Q. No,.i, v.nat dces the /'bunt Holly officer usually 1 B carry on nis person Wlen he's in unifonn? What kind of 19 equipnent is standard issue in your departrrent? 20 A. Uniform, firearm, handcuffs, pepper spray, may 21 or IIBY nO": carry a baton, generally not. 22 Q. And hew aba.Jt radio equil=flEnt, any pieces you 23 usually ca.rried on the bcdy? 24 A.. Yeah, portable radio. 25 Q. And does your depa.rtrrEnt issue or use kind of a 1 backgrounc., but we learned ....nere he was Ii ving and v.ent to 2 his location to pick hin up on that bench 'warrant. 3 Q. And t.ell rne Wlat happened MJen :::,.OJ got there. 4 A. We went in, parkeel the vehicle at that location 5 and went and knocked on the door. Ctly an.sv.ered the door, 6 told him W~ had a warrant for his arrest, entered the 7 residence \..tJile he turned off his washer and got, I think, 8 his shirt on. 8 9 I placed him under arrest and read him the 10 warrant ami walked him out to the truck. He was handcuffed 11 in front b<i!Cause he was cooperating. Officer Bradley 12 stayed with Mr. Burford, and I began to approach the 13 driver's side thinking they were going to get in without a 14 problen. Jl, struggle ensued. 15 Burford was holding onto the bed of the truck. ] 6 I ran back to assist Officer Bradley, and just as I got 17 there, everytxxly fell to the ground. His handcuffs were 18 taken off t1e front, he was rolled over and handcuffed 19 behind, placed in the truck, taken to the booking center 20 and releasecl to the deputies there. 21 Q. Besides y.JU and Officer Bradley, WlO else was on 22 duty that day in MJunt Holly? 23 A. don't recal1. 24 Q. flcMl rreny officers v..ould there usually be on 25 duty? A. Usually one. Q. No.v, this particular day, you were not in < unifom, correct? 4 .;. No. S Q. Ho.v about Officer Bradley? 6 A. No, absolutely not. 7 Q. And v.hat vehicle did you bring? 8 A. My personal vehicle, a '79 (31.(: pickup. 9 Q. No.v, \J1ere were the jXllice cruisers? Were they 1.:) in :Jse? 21 fl. Well, one of them '-8S. : don't kno.v aI::out the -~ othe;:-. We didn't choose to use a police vehicle. ~ 3 Q. No.v, at Sate point, M::. Burford did express sane 14 conce::-;:-, atou~ there not being a jXllice vehicle there, ~s didn't ~,e? 16 A. 1':1' S'Jre he did. I don't rEm3nber at \J1at 17 point. 1 guess just before he W3..s getting in the truck. :8 Q. Ane: yo...: aild Mr. Burford had a little bit of 19 history before this incident. Is that fair to say? 20 A. Yeah-. 21 Q. Na,.,', ~'Jere was an incident that involved you 22 a;:-re.sting ins son. ill you recall that? 23 .A. Yes. 2~ Q. Tell rre about that. Tell me Wlat 8Jy did Wlile 25 you were trylr.g to arrest his son. 1 but-- 2 Q. Did you ooke any quotes or carments to the 3 newspaper about ho..J you felt about the sentence? 4 A. I don't recall. 5 Q. It's fair to say you weren't happy with the 6 no-Jail-tirre sentence? 7 A. No,]: I-.OUld not have been happy about that. 8 Q. No..J, Wlile you were at Mr. Burford's house, did 9 you sha.-v him t.'le warrant, t!le paper warrant? 10 A. Yeah. I read fran it. 11 Q. Did:you let him ir.spect .it? 12 A. I don't ~ma.-v that it was handed to him. It may 13 or may ilot have been. I don't recall. : 4 Q. Na.-v, let's back up no..J. Before this incident, : 5 had anyone ever carplained to you or the mayor or :he 16 departJrent about use of force by the MYJnt Holly t'olice? j,'" A. With the exce;:>tion of the one that \-.e v..ent to 1~ cO'..:rr Oil, no 19 No fr;!:Tl\Oil or ir.f:Jrma':' cctl"q)laiilts to your 20 kno.vledge? L. ,.... 1-.'0, nothing that I can think about. 22 Q. And the one you went to court on, do you 23 ranenber the name of :..l-Jat person tJ-.at accused you? 2 ~ A. Arthur Librum. 25 Q. L-i-b-r-u-m, or close enough? Is that Larry 9 10 1 A. Keith wa.s drunk. The original attarpt was to 2 get him and sore of his friends fran partying in the front 3 yard. There was .sane carplaints frem the neighbors. I 4 asked him to go in the house. Again, I talked to Keith and 5 Keith be::ame argurrentative, and finally I begar. to arrest 6 him for;JUblic drunkenness and disorderly conduct and a 7 struggle ensued. 8 We rolled around; there were a nurrber of people. 9 ::: didn't have a jXlrtable radio on my person at that time. 1 C I w=nt back to the police car, on the other side. I called 11 for assistance and walked back with the baton, and I was 12 met at the curb by Mr. Burford, Guy. And he grabbed a hold 13 of the baton and he expressed his concern and thought I was 14 going to hit Keith and he was gcing to s:op the arrest. 15 Q. And you recall going to court fer that? -'-6 A. Vaguely, yeah. 17 Q. And you attended the sentencing? 18 A. No. 19 Q. Did you ever tell or express to the Court l-.!1at 20 sentence you I,.,t(lnted to see irrposed? 21 A. I might have to the prosecuting attorney, but 2 2 not to th'2 Court. 23 Q. Do you rE!T\8lt)e,r any of :he publicity that 24 surrounded that event? 25 A. Not .specifically. I kno..J it was in tile paper, 11 12 1 Librum r s brother? 2 A. Yeah. 3 Q. I recognize the family name. What did he claim 4 happened in that suit? ill you rEfl'l'2!'Tber? 5 A. He said that I pushed him on the ground, I 6 believe, and he said that I had squeezed the handcuffs 7 tight on him at the station. 8 Q. And ..,r,at was your defense at trial? Was that 9 justified force or just wasn't true or __ 10 A. What was my defense? :1 Q. Ye.s. 12 A. He sustained no injuries frem handcuffs; the 13 handcuffs \..ere applied in a nonna1 fashion, loJ'.ich is a 14 finger beb."'*'n the handcuffs and the wrists and they're 15 double locked so that doesn't happen; he had no injuries 16 recorded any..,here; he had no doctors' infonnation, no 17 nothing. It was just not justified. I think we were in 18 court for tw:J days, and the jury W3S out 20 minutes to find 19 t.hat \-.e I..e.re not guilty. 20 Q. How llI3ny bench warrants w:JIJld you say ~ served 2l ....nile you ....ere O1ief of Police? 22 A. illzens. 23 Q. ~d hew oony of than did jAJU serve in carlisle? 24 ill you rern:l'lver? 25 A. I have no recollection. 1 Q' HcJ..J often WJUld you leave the borough to serve a 2 bench '-"'3rrant? A Q" frequently Besides Gly Burford, can }oUJ think of any others ~ that 'yOu traveled to, say, Carlisle or farther to serve __ c A. Not specificaEy. There' oS SCl"J'l>2 that W2 traveled - muc!: !'arther 9 Q. New, generally Wlen you serve a bench warrant, 9 do you notify L'le 1=1 policing agency of your presence? :0 A. Yes. ] 1:;). And In this case did you notify Carlisle? 12 A Yes, W2 did 1:, Q. [b you knew WlO you talked wi<jJ? 14 A. Tr,e cs:J, Wloover '-"'35 on at tha::' ti.Jrr2. : ~ Q. NON, you agree that SaTE Carlisle Police 16 Oeicers die: resp:md as a result of this event? : 1 A. Yes. 18 Q. C)id you call ~er, as backup? 19 A. No. 20 Q. [b you kno..J Wly t.'ley responded? 21 A. No. 22 Q. And it was obvious v.tJen you got to the 23 courthouse that they didn't kno..J you were on official 24 business, correct? ?s MR. YCXJl'-K;: Cbjectior. to the form. 2 3 4 A Olly as long as r had to. Q. Wno did you talk with? Co you rE!T1EJlber? A. No. Q. Co you knew Detective Soon Jackson? 1'.. I knON the name. I may when I see hil'n. Q. HON ab:lut cetective Brenne:'an fran the CIO? A. Brennenan? Q. Yes. I don't think he's there an'ylTDre. A. You nean Brennan? Q. Brennan. 6 9 10 2] A. Yeah. 12 Q. Did he talk with you that day? 13 A, No. 14 Q. les treeling (phonetic)? 15 A. I know Le.s freeling. ; 6 Q. Did he talk with you that day? 17 A. No. :L8 Q. Any county detectives talk with you at all ever 19 abot.:t t.h1.'O case? ",C ,ll... Not t.hat I recaL, eve;. 2: Q. Hew ab:;lut she,iffs? I-L3d anytxxly fran the 22 sheriff's departmant ever talk to you ab:lut this case? 23 A. No, not that I can think 0:. 24 Q. So you're not aware of any investiga:ion of the 25 incident undertaken by the govern;o;:mt? 13 14 1 BY I'R. FQ{[NGER: 2 Q. let me restate that. Tell me vtJat the carlisle 3 Police ....ere doing Wlen you arrived at the courthouse. 4 A. They were pulling in behind us. 5 Q. And did they have their lights on? 6 A. r don't recall if L'1eydid or not. 7 Q. D::J you rarenber a carrnand to stay 1r. the 8 vehicle? 9 A. I rEmBrber the officer speaking to me. I don't 1 0 reca 11 exactly....na t the c.amand was. 11 Q. And was it your irrpression that they kne.< you 12 \-.ere a law officer, officer of the law? 13 A. No. 14 MR, YaJNG: Cbjection to the form. 15 M<.. RCMINSER; I guess it's cross. I certainly 16 can ask him ....nat his irrpression was. 17 11'\. YOJNG: I was just objecting to the fonn. I 18 think it's an inappropriate question. You're asking him to 1 9 make aSSl:rrptions as to ;..hat was in the mind of sanet:ody 20 else. 21 I-R. fO.1INGER: I just W31lt to knew ....nat his 22 irrpression was, not ....nat was in other people's minds. 23 BY l'R. RJ"ITNGE:R: 24 Q. Hew long did you end up staying at the 25 courthous,e: t.'la: day? 15 16 1 A. Absolutely not. 2 Q. Okay. Are you aware of any investigations of 3 any natun~ against 'yOu? 4 A. No, 5 Q. And Wi!re you ever questioned about any ot.IJer 6 matter by county law enforcEmant? 7 A. No. S Q. And aside fran v..hen this suit was filed going 9 back to the tine of the incident, did you ever have 10 occasion to talk about this or think about this case? 11 A. I had no reason to. 12 Q. Did the lawsuit surprise you? 13 A. Yeah. 14 Q. New, you're represented by counsel nCNJ, correct? 15 A. Yeah. 16 Q. Have you had a chance to neet with counsel and 17 go over thH case? 18 A. Yes. 19 Q. Has counsel shCMed you any official docurrents or 20 anything ridated to it besides the matters filed in court? 21 A. The only thing I saw at all was photocopies of 22 ....nat you g~ve him this rrorning, ....nich W2re copies of the 23 reports that I did back then, ;..hich I couldn't read anyv.ey. 24 Q. Did you, in preparation for tcday, reviEW any of 25 your old reports or notes? 1 A. No. 2 Q. And have you and Officer Bradley had a chance to 3 talk about tJle case at all? A" Yes. :; Q. Okay. And is your recollection carpletely 6 ~ndependent or is SCID2 of it based on sort of refreshing 7 eacJ: other's recollections? S A. Ylhen W2 talked about it we might have said, 9 I'>€~l, did you do tJlis or did you do that or yeah, that's 10 right, :hat's v.tlen this happened, that sort of thing. : 1 Q. NoN, ha.-o many other tiIrEs have you ever served a 12 bench WilIrant in your plain clothes? :j A. I don'..:. knew. I've served other warrants in 1~ general ln plain clothes. It's not -- particularly...men :; you're out of your iJWrl jurisdiction and you're serving a 16 wa:rant, people WlO don't wa:1t to be arrested don't a:1Sv.er ,~ ;:he QOOr if they see a uEifom,. 18 It '5 not unusual, \-.e have on prevlous occaslons, ; 9 :na.nyoccaslons, in fact, arrested people with warrants 1r. .cL' civ~l,an clot'le.:,' in personally-o.-med vehicles, :;: \l>Quld 21 have used an unmarked lXJlice car had W2 one. We do not 22 have an un:rarked police car. 2 J Q. Did you, before you served :he bench W3.rrant, 2~ talk with t..'le probation officer at all? 2') A. No 1 specific instance. Ycx.; can use arm leverage, like a 2 bent--wrist ccrri2 along. You might -- I can't dalOnstrate it 3 nere, bu::. it's just a matter of control, control the 4 defendant's liJrt,s and body lroVerents until you can get than 5 1r. a position to handcuff than. Q" co you ranarOer ....nich techniques or vklich "1 pressure poi:1ts you might have used in the day in question? 8 A. No. It was pretty nondescriptive. 9 Q This incident didn't really stick out at you? Ie ;>,. No. not at all. . - Q. New, vklen did you cease to be the Olief of 12 ?olice for M.:Jun: Holly? CO yo!.: r61l6rber Wlen that was? lj A. 1 think it was Cctober ':2tr, of 2002. 14 Q. Why did you cease erplo'ym2nt with the Mount 15 Holly BorOlJgh? 16 A. I suffer a neurological disorder, and became on 17 disability. :8 ",. What:cs t..'lat? J 9 A. Spilepsy. 20 Q Coes it affect your rrarory or anything ~ike 21 that, or 1S it just scmet.l[ing that causes seizures frOT1 22 C"-!f1e tc :ir"",? 2 3 A. I;: affects your rrarory after a seizure, 24 short-tem. 25 Q. But it doesn't irrpair your long-term marory? 17 18 1 Q. And did 'yI:)ll check to see Wlether or not the 2 warrant was still valid on the day 'yI:)ll served it? 3 A. I don't recall ....nether W2 called the sheriff's 4 offioe or not, but the sheriff offices are very prudent 5 about W3rrants. If they've been served, they'll call right 6 away and say, this warrant's been served, and we take ti1Sll 7 off the list. But generally v..e do call, but I can't recall 8 that rrorning ....nether W2 called and checked on that one or 9 not. 10 Q. And you get these warrants au:anatically or just 11 a notice of a warrant? 12 A. They're sent to us autanatically, 13 Q. An actual copy of the warrant? 14 A. Yes. 15 Q, And that's for any case you've been involved in 16 in t.1;e past even if the person's rroved out of the area? 17 A. Yeah. 18 Q. Have you been trained in hov,r to subdue a 19 defendant? 20 A. Yes. 21 Q. And you said that in this particular case, ~u 22 all kind of fe~l to the ground. wr,at techniques did you 23 have to c:se to get the defendant rehandcuffed? 24 A. Generally speaking -- and I'm thinking you use 25 v.hatever pressure points you can, and I can't rerarber the 19 20 1 A. Not that I'm aw:lre of. 2 Q. Not that I can rE!llffl1be=, right? 3 A. Yeah. 4 Q. Are you still engaged in any kind of arbitration 5 or other thing with the tcwnship over yrur benefits? 6 A. Yes. 7 Q. And you were never ;:erminated for cause or given 8 any written warnings because of behavior or conduct as an 9 officer? 10 A. Not like that, no. 11 Q. CO you recall listening to Mr. Burford's 12 testirrony about him making a carplaint back in 1998 to the 13 Borough of M:lunt Holly Springs? 14 A. Yes, I rEmEmber him saying that. 15 Q. CO you r€l1'lE!1'ber Wlen Ma~r, do you rerarber 16 Ma~r ottc caning to you and talking to you about the 17 incident that he was carplaining about? 18 A. Not specifically. I vaguely recall, and I don't 19 knCMI Wlether it was because I was there or because I was 20 told that G.lY was at a council rreeting and crnplained. 21 Q. Is it possible that Mayor otto never talked to 22 you? 23 A. Yeah, I guess it's possible. I don't recall. 24 Q. You don't really rararber him doing any real 25 in-depth investigations or questioning of you ai:oJt any <: d;.fferent bcidents, do you? M'. 'lOONS: Cbjection to the form. You ~n ~ ans...€.:: 4 BY M'\. RCMINGER: ~ Q. You don't recall Mr. otto doing any in-depth 6 investigations of you? A No. 8 Q. And do you rffill2!llber hcw often he'd bring a '9 cCIl?lain: Clr concern to you, if at all? L'-' A. Ccrrplaint.s or concerns about any--J',ing? Q. Aixlul t.he function of one of the office!"s 0':: I ~2 you.rse] t. 1':' A. Arl'y'tirre anylxdy said anyth~ng to him, he -- it l4 was very ccnmon for Bob, Mayor otto -- I mean, he lived 15 right near the police station; he traveled by there all the 16 tirre; I've kno..-m hi.m since I W3.S a ,\IO\mg boy. 17 It '....as quite ccmmn for hi.m, if anylxdy said 18 anything about anybcx:iy or anything wa \-.ere doing or not 19 doing in the police department, to just stop in and say, 2::J ney, [)Jane, sc.rre!xldy said -- do you know anything about 2: that, so he 'was p.::-etty up-to-date on ....nat was going on, 27 :'11 say that 23 Q. Did you ever have to draw your weapon in the ~4 ':ine of duty? 25 A Yes. 1 Q. Co you rE!l1ffit€r Wlen you first met GJy Burford? 2 A. No, not .specifically. 3 Q. Co you have any early rrarories of hi.m arou:1d 4 !'bunt Molly? 5 A My :'":.rst Il1E!TOries of h:m were -- and this was 6 after r had stopped him for walking up the stree:., you 7 Kno...r -- r stopped believing he was drunk or on senething. 8 Then I learned that he had sene medical probl611 that caused 9 h!.m to walk ':..l-]e way he did, and I felt terrible that I had 10 done that. lJ He.::e's a guy W10'5 trying to recover fran 12 scmeti,ing, getting exercise and I stop him and accuse him 13 of being drunk. And I think he stated later I apologiZed :4 fa.:: tha,-. I didn't knew, and I felt bad about 1t. I think 1" Guy kind of thought it was funny later, but it wasn't at 16 the time, Q. HON did you cane to arrest GJy fa.:: possession of 18 mariJuana or the manufacture, I guess? 19 A Explain. 2J Q, Yo~ arrested him for manufacture and posS€..,sion 2] of :ra-,ijuana at sane p:lint? 22 A '!"es. 23 Q. .,"ON did that investigation COlle to be? "'4 !... We received information from a witness W".o had 2": seer, the JTErj~uana and the cutting and growing in his 21 22 1 Q. HON many tirres do ytX.l think that happened? 2 A. 01., I have no idea, 3 Q. Did you ever draw your waapon on a 12-year-old 4 boy...no had stolen a car? 5 A. I don't think so. 6 Q. Co )IOu raranber drawing your weapon on sanabod.y 7 under 16? 8 9 10 11 A. No. Q. Did your office have a policy on use of force? A. Sure. Q. What about pepper spray? HON often WJllld you 12 say you had to use that? 13 A" I just spoke to that at lunch. In my entire 14 career, I've used peppEl':- spray twice, and I've never struci; 15 an).body ir, my entire career of:..7 years with a baton. 16 Q. Yot: have had to unholster the baton before? 17 A. It's nonrally - Ioohen I began as a police 18 officer in 1984, we carried a baton in a ring, and that was 19 only for a short period of time. After that, it was 20 generally JUSt left lr. the car. 21 You took a baton if you thought )IOU may need 22 one. As far as carrying a baton into an incident, how many 23 tirres did I carry a baton in? Probably less than ten times 24 in all tho;oe years did : canied a baton with me to an 25 incident. 23 24 1 house; got a search warrant; \-.ent there with other 2 officers, 01 cio:;l, and found marijuana; tools for cutting, 3 bagging; scales for weighing; cash that was indicated by 4 the dog hac been handled by hands with the scent of 5 IlBrijuana cn it and a ledger of his custcmers as \-.ell as 6 plants and gro..J lamps in a closet. 7 Q. New, the ;..arrant nacres Jennifer Atkins as the 8 person WlO advised you of this. Is that correct? 9 A. res. 10 Q. l-Io..J is it that she carre to you? Did she just 11 care to you out of the blue, or were you scmehcw 12 investigating her at one point? 13 A. She I-.Orked at the Sheetz, our local Sheetz 14 store, and "he kne...r Officer Bradley. She related these 15 things to him and he to Ire. Then I spoke with her, t=k 16 her infonration, went and got a warrant. 17 Q. SO she didn't do this as part of a - like, she 18 wasn't in jeopardy or trouble herself I-.Orking as a 19 confidential infonrant or anything like that? 20 A. No. 21 22 Q. Kind of a good. citizen sort of cClTplaint? A. I don't knON if she was just being a gcxx! 23 citizen or w1ether she was Kl'd at GJy, maybe a little of 24 both. 25 M'<. RJ:MINGER; I don't have anytl,ing else to ask "L t.11S time. :: M\. YOJNG: No questions. (Whereupon, the depJsition Vo.8S concluded at ?:~5 p.m. ) 5 6 10 :1 12 :3 "4 :6 p 18 19 L':'- " 22 2 ~ 1~ 25 25 1 CIM-{NWEALTH OF PENNSYLV7\NIA ) ) 5S. 2 CJJNTY or C1..MBERlJ\ND ) 3 26 I, JENNIfER L. SIroIS, a Court 5 Rep::lrter-Notary Public authorized to actninister oaths and 6 take depositions in the trial of causes, and having an 7 office in Carlisle, Pennsylvania, do hereby certify that 8 the foreqoing is the testimony of IllINE L. LEBO. I further certify that before the t.aking of 10 said deposition the witness was duly SW)rn; that the 11 question:, and anSl-oers were taken cJc:wn stenotype by the said 12 Rep:Jrter'-Notary, approved and agreed to, and afterwards 1 3 reduced to cooputer printout under the di.rection of said 1 4 Repo.::-ter. 15 I furt.l-Jer certify that the proceedings and 16 evidence are =ntained fully and accurately in the notes 17 taken by rre on the wi thin deposi tion, and that this copy is 18 a =rrect transcript of the sarre. 19 In testirrony v..hereof, I have hereunto 20 inscribed my hand this 2nd day of July, 2003. 21 22 23 24 25 Notary I:'UbllC '79 [1] 9:8 - 0 - 05 [1] 1 :17 - 1 1 [1] 1: 1 12 [1] 6: 11 12-year-old [1] 22:3 12th [1] 19:13 15 [2] 5:8,9 155 [1] 1 :19 16 [2] 5:8; 22:7 17 [2] 5:6; 22:15 1984 [1] 22:18 1998 [1] 20:12 - 2 - 2 [2] 1:17; 25:3 20 [1] 12:18 2000 [5] 5:2, 12; 6:3; 7;8, 11 2002 [1] 19:13 2003 [2] 1: 17; 26:20 27 [1] 1 :17 2nd [1] 26:20 - 4 - 4 [1] 3:3 45 [1] 25:3 - 6 - 661 [1] 4:14 - A - absolutely 9:6; 16: 1 accurately 26:16 accuse [lJ 23:12 accused [1] 11 :23 acting [1] 5:6 actual [1] 18:13 address [1] 4:12 administer [1J 26:5 adult [2] 1:3,6 advised [1] 24:8 affect [1] 19:20 affects [1] [2] [1] 19:23 afterwards 26:12 again [1] 10:4 against [1] 16:3 agency [1] 13:9 agree [1] 13:15 agreed 11] 26:12 ahead [1] 4:22 along [1] 19:2 annually [1J 6:14 answer [4] 5: 1; 17: 16; answered 8:5 . answers 26:11 anybody [5] 15:21; 21:13, 17, 18; 22:15 anymore 15:8 anyone 11: 15 anytim e 21 :13 anyway 16:23 anywhere 12:16 apartment 7:25 apologized 23:13 appearances [1] 2:1 applied 12: 13 approach 8: 12 approved 26:12 arbitration 20:4 area [1] 18:16 argumentative [1] 10:5 arm [1] 19:1 around [4J 7:18, 19; 10:8; 23:3 arrest [6] 8:6, 9; 9:25; 10:5, 14; 23: 17 arrested [4] 7:14; 17:16, 19; 23:20 arresting 9:22 arrived [2] 5:19; 14:3 arthur [1] 11:24 4:20; 21 :3 [1] [1] [1] [1] [1J [1] [1] [1] [1] [1] [1] [1] [1] [1] [1] aside [1] 16:8 ask [4] 4:19,22; 14: 16; 24:25 asked [1] 10:4 asking ['I] 14:18 assist [1] 8:16 assistance [1] 10:11 assume [1] 4:20 assum pti,ons [1] 14:19 atkins [1] 24:7 attempt [1] 10:1 attended [1] 10: 17 attorney [1] 10:21 authorized [1] 26:5 automatically [2J 18:10, 12 aware [3] 15:24; 16:2; 20: '1 away 11] 18:6 - B - back [13] 5:1,2, 12; 6:14; 7:7, 10; 8:16; 10:10, 11; 11:14; 16:9, 23; 20:12 background [1] 8: 1 backup [1] 13: 18 bad [1] 23:14 bagging [1] 24:3 based [1] 17:6 baton [10] 6:21; 10:11, 13; 22:15, 16, 18, 21, 22, 23, 24 bayley [2] 1: 18; 2:2 became [2] 10:5; 19:16 bed [1] 8:15 began [3] 8: 12; 10:5; 22:17 behavior [1] 20:8 behind [2] 8:19; 14:4 believe [2J 7:21; 12:6 believing [1] 23:7 belt [1] 7:1 bench [7] 7: 13; 8:2; 12:20; 13:2, 8' 17:12,23 benefits [1] 20:5 bent-wrist [1] 19:2 besides [3] 8:21; 13:4; 16:20 between [2] 4:2; 12:14 bit [1] 9:18 black [2] 7:5, 6 blue [1] 24:11 bob [1] 21:14 body [2J 6:23; 19:4 booking [1] 8:19 borough [5] 1:8; 5:3; 13:1; 19:15; 20:13 both [1] 24:24 boy [2] 21:16; 22:4 bradley [10] 1:5; 2:7; 7:21; 8:11,16,21; 9:5; 17:2; 24:14 brennan [2] 15:9, 10 brenneman [2] 15:6, 7 bring [2] 9:7; 21 :8 brother [1] 12:1 burford [12] 1: 1; 2:7; 5:19, 21; 7:15; 8:12, 15; 9:13, 18; 10:12; 13:4; 23: 1 burford's [4] 4:15; 7:17; 11:8; 20:11 business [1] 13:24 - c - c [1] 2:4 call [4] 7:22; 13:18; 18:5,7 called [4] 4:7; 10:10; 18:3,8 came [3] 7:8, 11; 24:10 can't [3] 18:7, 25; 19:2 capacity [2] 1 :4, 6 car [5] 10:10; 17:21, 22; 22:4, 20 career [2] 22:14, 15 carlisle [11] 1:19; 4:14; 7:8, 11, 19: 12:23; 13:5, 11, 15: 14:2; 26:7 carried [3] 6:23; 22:18,24 carry [3] 6:18, 21; 22:23 carrying 22:22 cars [3] 6: 1, 3, 4 case [8] 15:19, 22; 17; 17:3; 21 cash [1] 24:3 cause [1] 20:7 caused [1] 23:8 causes [2] 19:21; 26:6 cease [2] 19:11, 14 center [1] 8:19 certainly [1] 14: 15 certification [1] 4:3 certify [3] 26:7, 9, 15 chance 16:16; 17:2 check [1] 18:1 checked [1] 18:8 chief 5:2, 7, 6:8; 19:11 choose cid [1] citizen 24:21,23 civilian 17:20 claim [1] 12:3 class [1] 6:13 close [1] 11:25 closet [1] 24:6 clothes [3] 17:12, 14,20 color [1] 7:3 coming [1] 20:16 command 14:7, 10 commented [1] 7:17 comments 11 :2 [1] 13: 11; 16:10, 18: 15, [2] [9] 1 :4; 8, 9, 21; 12:21 ; [1] 9:12 15:6 [2] [1] [2] [1] common [2] 21 :14, 17 commonwealth [1] 26:1 complained [2] 11:15; 20:20 complaining [1] 20:17 complaint [3] 20:12; 21:9; 24:21 complaints [3] 10:3; 11 :19; 21 :10 com pletely [1] 17:5 com puter [1] 26:13 concern [3] 9:14; 10:13; 21 :9 concerns [1 ] 21 :10 concluded [1] 25:3 conduct [2] 10:6; 20:8 confidential [1] 24:19 contained [1] 26:16 control [2] 19:3 cooperating [1] 8:11 copies [1] 16:22 copy [4] 7:14, 15; 18:13; 26:17 correct [6] 5:4; 9:3; 13:24; 16: 14; 24:8; 26:18 ~ouldn't [1] 16:23 council [2] 7:22; 20:20 counsel [4] 4:24; 16:14, 16, 19 county [3] 15: 18; 16:6; 26:2 court [9] 1:16; 10:15, 19, 22; 11:18,22; 12:18; 16:20; 26:4 courthouse [3] 13:23: 14:3,25 covered [1] 5:22 credit [1] 6:11 cross [1] 14:15 cruisers [1] 9:9 cso [1] 13:14 cum berland [1 J 26:2 curb [lJ 10:12 customer's [1] 24:5 cutting [2] 23:25; 24:2 cv-02-20112 [1] 1:1 - D - date [1] 1:17 day [8] 8:22; 9:2; 14:25; 15:12, 16; 18:2; 19:7; 26:20 days [1] 12:18 defendant [2] 18:19, 23 defendanll's 19:4 defendanlts 1 :8; 2:5 defense 12:8, 10 demanded! 1 :8 demonst".te [1] 19:2 department [7] 1:5, 7; 6:19, 25; 11 :16; 15:22; 21 :19 department's [1] 7:3 deponent [1] deposition 1:14; 4:1<1; 26: 10, 17 depositlorls [1] 26:6 deputies 8:20 describe [1] 6:6 description [1] 3: 12 detail [1] 6:10 detective [2] 15:4, 6 detectives 15: 18 different 21: 1 direction 26:13 disability 19:17 disorder 19:16 disorderly 10:6 [lJ [2] [2] [1] 3:2 [5] 25:3; [1] [1] [1 ] [1] [1] [1] [1] doctors 12:16 documents 16:19 dog [2] 24:2, 4 door [3J 8:5; 17:17 double [1] 12:15 dozens [1] 12:22 draw [2] 21:23; 22:3 drawing [1] 22:6 driver's [1] 8:13 drunk [3] 10:1; 23:7, 13 drunkenness [1] 10:6 duane [8] 4, 14; 3:3; 14; 21 :20; duly [2] 26:10 duty [3J 8:22, 25; 21:24 [1] [lJ 1 :3, 4:7, 26:8 4:7; - E - each [1] 17:7 earlier [1] 7:22 early [1] 23:3 either [1] 6:3 else [3] 8:21; 14:20; 24:25 employed [1] 5:6 employees [2] 5:13, 25 employment [1] 19:14 end [1] 14:24 enforcement [1] 16:6 engaged [1] 20:4 enough [1 J 11 :25 ensued [2] 8: 14; 10:7 entered [1] 8:6 entire [2] 22:13, 15 epilepsy [1 J 19: 19 equipment [2] 6:19, 22 esquire [2] 2:2, 4 even [1] 18:16 event [3] 4:25; 10:24; 13:16 events [lJ 5:23 every [2] 6:10, 14 everybody [1] 8:17 evidence [1] 26: 16 exactly [1] 14: 1 0 examinetion [2] 3:2; 4:10 exemined [1] 4:8 except [1] 4:4 exception [1] 11 :17 exercise [1] 23:12 exhibits [1] 3: 11 explain [1] 23: 19 express [2] 9:13; 10:19 expressed [1] 10: 13 - F - fact [1] 17:19 feherty [1] 2:4 fair [2] 9:19; 11 :5 femily [1] 12:3 fer [lJ 22:22 farther [2] 13:5, 7 fashion [1] 12:13 fell [2] 8:17; 18:22 felt [3] 11:3; 23:9, 14 filed [2] 16:8, 20 filing [1] 4:4 finelly [1] 10:5 find [1] 12:18 finger [1] 12:14 firearm [1] 6:20 first [2] 23:1,5 follows [1] 4:8 force [3] 11:16; 12:9; 22:9 foregoing [1] 26:8 form [5] 4:5; 13:25; 14:14, 17; 21 :2 formel [1] 11:19 former [1] 1:4 found [1] 24:2 freellng [2] 15:14, 15 frequently {1] 13:3 friends [1] 10:2 front [3] 8: 11, 18; 10:2 full-time [2] 5:14, 25 fully [1] 26:16 function [1] 21; 11 funny [1] 23: 15 further [2] 26:9, 15 - G - gary [1] 1: 1 general [1] 17:14 generelly [5] 6:21; 13;8; 18:7, 24; 22:20 gmc [1] 9:8 good [2] 24:21, 22 government [1] 15:25 grebbed 10:12 grey [3] 7:4, 6 ground [3] 8: 17; 12:5; 18:22 grow [1] 24:6 growing [1] 23:25 guess 9:17; 20:23; guilty guy 7:23, 9:24; 13;4; 23:1, 24:23 [1] [5] 5:2; 14: 15; 23:18 [1] 12: 19 [13] 2:7; 24; 8:5; 10;12; 20:20; 11, 15, 17; - H - h [1] 1:4 hand [1] 26:20 handcuff [1] 19:5 hendcuffed {2] 8:10, 18 handcuffs [6] 6:20; 8:17; 12:6, 12, 13, 14 handed [1] 11: 12 handled [1] 24:4 hands [1] 24:4 henover 1:19; 7:2:3 happen 12:15 happened 7:7, 10; 12:4; 22:1 happens 4:25 happy [2] 11:5, 7 he'd [2] 7:23; 21 :8 heard I,!] 4: 15; 7;24 her [3] 24:12, 15, 16 here's [1] 23: 11 hereby 1'2] 4:2; 26:7 hereunto 26:19 herself 24:18 hey [1] :21:20 history [2] 5:22; 9:19 hit [1] 10:14 hold [2] 5:5; 10:12 holding [1] 8:15 holly [11] 1:5, 7, 8; 5:3; 6:17; 8:22; 11:16; 19:12, 15; 20:13; 23:4 hours [1] 6:11 house [3] 10:4; 11 :8; 24: 1 [2] [1] [6J 8:3; 17: 1 0; [1] [1] [1] - I- idea [1] 22:2 impair [1] 19:25 imposed [1] 10:20 impression [3] 14:11, 16, 22 in-depth [2] 20:25; 21:5 inappropriate [1] 14:16 incident [10] 7: 11; 9:"19, 21; 11 :14; 15:25; 16:9; 19:9; 20:17; 2222,25 incidents [1] 21 :1 independent [1] 17:6 index [2] 3:1,11 indiceted [lJ 24:3 individual [2] 1 :3, 6 informal [1] 11: 19 informent [1] 24: 19 information [3] 12:16; 23:24; 24: 16 injuries [2] 12:12, 15 inscribed [1] 26:20 inspect [1] 11:11 instance [1] 19:1 instructions [1] 4:15 investigating [1] 24: 12 investigation [2] 15:24; 23:23 investigetions [3] 16:2; 20:25; 21 :6 involved [2] 9:21; 18:15 issue [2] 6:19, 25 issued [1] 7:13 - J - jackson [lJ 15:4 james [4] 1 :5, 6; 2:4, 7 jeopardy [1] 24:16 judge [1] 1:4 july [1] 26:20 june [3] 6:3; 7:7, 10 jurisdiction [1] 17:15 jury [2] 1:6; 12:16 justified [2] 12:9, 17 - K - kerl [1] 2:2 keith [4] 10:1, 4, 5, 14 kind [7] 6:6, 18, 25; 16:22; 20:4; 23:15; 24:21 knew [2J 14:11; 24:14 knocked [1] 8: 5 knowledge [1] 11 :20 known [1) 21:16 . L - I-i-b-r-u-m [1] 11 :25 lam ps [1 J 24:6 larry [1J 11:25 last [1] 6:7 later [2) 23: 13, 15 lavery [1] 2:4 law [3] 14:12; 16:6 lawsuit [1] 16:12 lawyer [1] 6: 11 learned [2] 8:1; 23:8 leave [lJ 13:1 lebo [7] 1 :3, 4, 14; 3:3; 4:7, 14; 26:8 ledger [1] 24:5 left [1] 22:20 les [2] 15:14,15 less [1] 22:23 leverage [1] 19: 1 Iibrum [1] 11:24 librum's [1] 12:1 lights [1] 14:5 limbs [1] 19:4 line [1] 21:24 list [1] 18:7 listed [1] 7:18 listening [1] 20: 11 little [2J 9: 18; 24:23 lived [1] 21:14 living [2] 7:24; 8: 1 local [2] 13:9; 24: 13 location [2] 8:2, 4 locked [1] 12:15 long [3] 5:5; 14:24; 15:1 long-term [1) 19:25 lunch [1J 22:13 - M- making [1] 20:12 manufacture 23:18,20 marijuana 23:18, 21, 24:2, 5 matter [2] 16:6; 19:3 matters 16:20 maybe mayor 20: 15, 21: 14 mean [2] 15:9; 21: 14 medical [1] 23:8 meet [1] 16:16 meeting [1) 20:20 memories 23:3, 5 memory [3J 19:20,23,25 met [2] 10:12; 23:1 michael [1] 2:7 mind [1] 14:19 minds [1] 14:22 mine [1] 7:5 minute [1] 5:17 minutes [1) 12:18 morning 7:20; 18:8 mount [11] 1:5, 7, 8" 5:3; 6:17; 8:22; 11:16; 19:12, 14; 20:13; 23:4 moved [1] 18:16 movements [1] 19:4 [2] [5J 25; [1 ] [1] 24:23 [5] 11 :15; 16, 21; [2] [3] 16:22; - N - name [4) 4:12; 11 :23; 12:3; 15:5 names [1) 24:7 nature [1] 16:3 near [1] 21:15 need [1] 22:21 neighbors [1] 10:3 neurological [1) 19:16 never [3] 20:7, 21; 22: 14 newspaper [1] 11 :3 no-jail-time [1] 11 :6 nondescl'iptive [1] 19:8 none [1] 3:13 normal [1] 12:13 normally [1) 22: 17 north [1]1 7:23 notary [2] 1:16; 26:22 notes [2] 16:25; 26: 16 nothing [2J 11 :21; 1:t:17 notice [1] 18:11 notify [:~] 13:9, 11 num bel' [2) 7:16; 10:8 .0- oaths [1] 26:5 object [1) 4:24 objecting [1) 14:17 objection [3] 13:25; 14:14; 21 :2 objections (1) 4:4 obvious [1] 13:22 occasion [1) 16: 1 0 occasions. [2] 17:18, 19 october [1) 19:13 office [3] 18:4; 22:9; 26:;' officer [16] 1:7; 6:12, 17; 7:21; 8:11, 16, :t1; 9:5; 14:9, 12; 17:2, 24; 20:9; 22:18; 24:14 officers [6] 7:4, 6' 8:24; 13:16; 21 :11; 24:2 offices [1] 18:4 official [3] 1:6; 13:23; 16:19 often [4] 6: 13; 13:1; 21 :8; 22: 11 old [2] 4:14; 16:25 one [9] 11:1, 11; 11:17,22; 17:21; 18:8; :! 1: 11; 22:22; 24:12 onto [1] 8:15 original [1] 10:1 other's [1] 17:7 others [1] 13:4 otherwise [1] 4:21 otto [4] 20:16, 21; 21 :5, 14 over [5] 5:9; 6:7; 8:18; 16:17; 20:5 own [1] 17:15 . p - page [2) 3:2, 12 pants [1] 7:6 paper [4] 7: 16, 19; 10:25; 11:9 parked [1) 8:4 part [1] 24:17 part-time [2] 5:14, 25 particular [2] 9:2; 18:21 particularly [1] 17:14 parties [1] 4:3 partying [1] 10:2 past [1] 18:16 patterson [1] 2:4 pennsylvania [3] 1: 19; 26: 1, 7 people [4] 7: 17; 10:8; 17:16,19 people's [1 ] 14:22 pepper [3] 6:20; 22:11, 14 period [1] 22:19 person [4] 6:18; 10:9; 11 :23; 24:8 person's [1] 18:16 personal [1] 9:8 persona lIy-owned [1 J 17:20 phonetic [1] 15:14 photocopies [1] 16:21 piCk [1] 8:2 pickup [1] 9:8 pieces [1] 6:22 place [1] 1:18 placed [2] 8:9, 19 plain [2J 17:12, 14 plaintiff [3] 1: 1, 15; 2:3 plants [1] 24:6 po'd [1] 24:23 pOint [4] 9:13, 17; 23:21; 24:12 pOints [2] 18:25; 19:7 police [18J 1 :4, 7; 5:2; 9:9, 12, 14; 10:10; 11: 16; 12:21; 13:15; 14:3; 17:21, 22; 19:12; 21:15,19; 22:17 policing [1] 13:9 policy [1] 22:9 portable [2J 6:24; 10:9 position [2] 5:5; 19:5 possession [2] 23:17,20 possible [2] 20:21, 23 preparation [1] 16:24 presence [1] 13:9 present [1] 2:6 president [1] 7:23 pressure [2] 18:25; 19:7 pretty [3] 4: 18; 19:8; 21 :21 previous [1] 17:18 pri ntout [1] 26:13 probably [2] 5:9; 22:23 probation [1] 17:24 problem [2] 8:14; 23:8 proceedings [1] 26: 15 promoted [1] 5:7 prosecuting [1] 10:21 prudent [1] 18:4 pUblic [4] 1: 16; 10:6; 26:5,22 publicity [1] 10:23 published [1] 7: 16 pulling [1] 14:4 pushed [1] 12:5 - Q- qualifications [1] 5:22 qualified [lJ 6:14 question [7] 4:5, 19,21; 5:23; 7:20; 14:18; 19:7 questioned [1 J 16:5 questioning [1] 20:25 questions [2] 25:2; 26:11 quite [1] 21:17 quotes [1] 11:2 - R - radio [3] 6:22, 24; 10:9 rambo [1] 1:4 ran [1] 8:16 read [3] 8:9; 11: 10; 16:23 real [1] 20:24 really [2] 19:9; 20:24 reason [1] 16:11 recall [14] 8:23; 9:22; 10:15; 11 :4, 13; 14:6, 10; 15:20; 18:3, 7; 20:11, 18,23; 21 :5 received [2] 7:22; 23:24 recognize [1] 12:3 recollection [2] 12:25; 17:5 recollections [1] 17:7 record [3] 4: 13; 5: 16, 18 recorded [1] 12:16 recover [1] 23:11 reduced [1] 26: 13 refreshing [1] 17:6 rehandcuffed [1] 18:23 related [2J 16:20; 24: 14 released [1] 8:20 relevant [1] 5:1 remembe,r [19] 9:16; 10:23; 11:23; "12:4,24; 14:7, 9" 15:2; 18:25; '19:6, 12; 20:2, 14, 15, 24; 21:8; 22:6; 23:1 repairs 1[1] 6:4 rephrase [1] 4:22 reporter [2] 1:16; 26:14 reporter-notary [2] 26:5, 12 reports [2] 16:23, 25 represenlled [1] 16:14 reserved [1] 4:5 residencE' [1] 8:7 respective [1] 4:3 respond [1] 13: 16 responded [1] 13:20 restate [1] 14:2 result [1]1 13:16 review [1] 16:24 right [4] 17: 1 0; 18:5; 20:2; 21: 15 ring [1 J22: 18 road [1] 4:14 rolled [2] 8:18; 10:8 rominger [14] 1: 18; 2:.:; 3:3; 4:11; 5:16, 20, 24; 14:1, 15, 21, 23; 21:4; 24:25 routine [1] 6:10 run [1] 4:19 - 5 . safety [1] 6:12 said [11] 7:23; 12:5, 6; 17:8; 18:21; 2113, 17, 20; 26:10,11,13 same [2] 4: 19; 26:18 saying [lJ 20:14 scales [1] 24:3 scent [1] 24:4 sealing [1] 4:3 search [1] 24:1 seizure [1] 19:23 seizures 19:21 sent [1] 18:12 sentence [3J 10:20; 11:3 sentencing 10:17 serve [4] 12:23; 13: 1, 5, 8 served [7J 12:20; 17:11, 13, 23; 18:2, 5, 6 serving [1] 17: 15 sheetz [2] 24:13 sheriff [1] 18:4 sheriff's [2] 15:22; 18:3 sheriffs 15:21 shirt [2] 7:5; 8:8 shirts [1] 7:6 short [1] 22:19 short-term [1] 19:24 show [1] 11:9 showed [1] 16:19 side [2] 8: 13; 10:10 signing [1] 4:3 simon [1] 15:4 sir [1] 4: 13 sirois [2] 1:16; 26:4 slacks [1] 7:5 slate [1] 7:6 somebody [3] 14:19; 21:20; 22:6 somehow 24:11 someone 7:14 som ewhere 7:25 son [2] 9:22, 25 sort [3] 17:6, 10; 24:21 south [1] speaking 7:21 ; 18:24 specific [1] 19:1 specifically [4] 10:25; 13:6; 20:18; 23:2 spoke [2] 22:13; 24: 15 spray [3J 6:20; [1] [1] [1] [1] [lJ [1] 1 :19 [3J 14:9; 22:11, 14 springs [5] 1 :5, 7,8; 5:3; 20:13 squad [1] 6:1 squeezed [1] 12:6 standard [1] 6:19 started [1] 5:21 stated [1] 23: 13 station [2] 12:7; 21: 15 stay [1] 14:7 stayed [1] 8:12 staying [1] 14:24 stenotype [1] 26: 11 stick [1] 19:9 still [4] 6:8; 7: 17; 18:2; 20:4 stipulated [1] 4:2 stipulation [1] 4: 1 stolen [1] 22:4 stop [3] 10:14; 21:19; 23:12 stopped [2] 23:6, 7 store [1] 24:14 street [3] 1:19; 7:24; 23:6 struck [1] 22:14 struggle [2] 8:14; 10:7 subdue [1] 18:18 suffer [1] 19:16 suit [3] 5:1; 12:4; 16:8 sure [2] 9:16; 22:10 surprise [1] 16: 12 surrounded [1] 10:24 sustained [1] 12: 12 sworn [2] 4:8; 26: 10 sylvia [1] 1:4 - T - taken [5] 1: 15; 8:18, 19; 26:11, 17 taking [1] 26:9 talk [8] 15:2, 12, 16, 18, 22; 16: 1 0; 17:3, 24 talked [4] 10:4; 13: 13; 17:8; 20:21 talking [2] 7:12; 20:16 techniques 18:22; 19:6 tell [8] 4:21; 7:7, 10; 8:3; 9:24; 10:19; 14:2 ten 22:23 terminated 20:7 terrible [1] 23:9 tested [1] 6:15 testified [1] 4:8 testimony [4] 3:1; 20:12; 26:8, 19 than [1] 22:23 their [1] 14:5 these [3] 7: 15; 18:10; 24:14 they'll [1] 18:5 they're [2] 12: 14; 18: 12 they've [1] 18:5 thing [3] 16:21; 17:10; 20:5 things [2] 4:18; 24:15 think 8:7; 12: 17; 14:18; 16:10; 22:1, 5' 14 thinking 8: 13; 18:24 thought 10:13; 23: 15 three [4] 5: 14, 25 tight [1] 12:7 time [13] 4:5; 5:1,12,15; 10:9; 13: 14; 16:9; 19:22; 21:16; 22:19; 23:16; 25:1 times [4] 17: 11; 22:1, 23 today [1] 16:24 told [2] 8:6; 20:20 took [2] 22:21; 24:15 tools [1] 24:2 [2] 6:7; 11] [14] 5:7; 11 :21; 13:4; 15:8, 23; 19:13; 23:13, [2] [3] 22:21; [2] township [1] 20:5 trained [1] 18:18 training [1] 6:7 transcript [1] 26:18 traveled [3] 13:5,6; 21:15 trial [4] 1 :8; 4:5; 12:8; 26:6 trouble [1] 24:18 truck [4] 8:10, 15, 19; 9:17 true [1] 12:9 trying [2] 9:25; 23:11 turned ['I] 8:7 twice [1] 22:14 two [3] 6:2, 3' 12: 18 - U - under [:ll 8:9; 22:7; 26:13 understand 4:20, 22 undertakEln 15:25 unholster 22:16 uniform 6:18, 20; 9:3; 17:1'7 uniforms [11 7:3 unless [1] 4:21 unmarked [2] 17:21, 22 until [2] 4:5; 19:4 unusual 17:18 up [4] 11: 14; 23:6 up-to-dah 21 :21 us [4] 7: 17; 18: 12 use [9] 9:10, 12; 18:23, 24; 22:9, 12 used [3] 17:21; 19:7; 22:14 usually [4"] 6:17, 23; 8:24; 9:1 utility [1] 7:1 [2] [1] [1] [5] 7:5; [1] 8:2; 14:24: [1] 4:25; 14:4; 6:25; 11: 16; 19:1 ; - V - vaguely [2] 10:16; 20:18 valid [1] 18:2 vehicle [6] 8:4; 9:7, 8, 12, 14; 14:8 vehicles [1] 17:20 very [21 18;4; 21 ;14 visit [1] 7:22 -w- w [1] 2:7 waived [1] 4:4 walk [1] 23:9 walked [2] 8:10; 10: 11 walking [3] 7:18, 19; 23:6 want [3] 4:22; 14:21; 17:16 wanted [1] 10:20 warnings [1] 20:8 warrant [20] 7:13, 14, 15, 18; 8:2, 6, 10; 11:9; 13:2, 8" 17:12, 16, 23; 18:2, 11, 13; 24:1,7, 16 warrant's [1] 18;6 warrants [6] 7:16; 12:20; 17;13, 19; 18:5, 10 washer [1] 8:7 way [2J 4:19; 23:9 we've [3] 5:21: 7:11, 14 weapon [3] 21 :23; 22:3, 6 weighing [1] 24:3 weren't [1] 11:5 west [1] 4:14 whare [1] 2:7 whatever [1 ] 18:25 whenever [1] 7: 13 whereof [1] 26: 19 whereupon [2] 5:19; 25:3 whether [5] 18:1,3,8; 20:19; 24:23 while [5] 6:7; 8:7; 9:24; 11 :8; 12:21 white [1] 7:5 whoever [1] 13:14 whole [1] 4:19 why [3] 7:17; 13:20; 19:14 within [1] 26:17 without [1] 8:13 witness [3] 4:7; 23:24; 26:10 wore [1] 7:6 worked [1] 24: 13 working [1] 24:18 wrangle [1] 4:25 wrists [1] 12:14 written [1] 20:8 - y - yard [1] 10:3 year [3] 5:7; 6:11, 14 years [6] 5:6, 8, 10; 6:7; 22:15, 24 yet [lJ 5:23 york [1] 4:14 young [8] 2:4; 13:25; 14:14, 17; 21 :2, 16; 25:2 yourself [1 J 21 :12 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MINUSCRIPT 1 1 GARY BURFORD, Plaintiff, NO.1: CV,"Q.~c2,Q~~=-;:,-::_ _ __~_ "~\15 (!"':5;1 "'1' , '-. lli' .~ '<:::7l.5 LJ \_J '"'- . Ii .,1 1/ ' 'I i rf (\1 Jll.-82003 ':1:: l!Ji 2 v. 3 4 DUANE LEBO, an adult individual, and Duane Lebo, in his capacity as former Chief of Police of the Mount Holly Springs Police Department, and JAMES BRADLEY, an adult individual, and JAMES BRADLEY, in his official capacity as an Officer of the Mount Holly Springs Police Department, and the MOUNT HOLLY SPRINGS BOROUGH, Defendants. JURY TRIAL DEMANDED JUDGE SYLVIA 5 6 7 8 9 (C ~O lJ2>1f' Deposition of: JAMES P. BRADLEY Taken by: Plaintiff Before: Jennifer L. Sirois, Court Reporter, Notary Public Date: May 27, 2003, 2:45 p.m. Place: Rominger & Bayley 155 South Hanover Street Carlisle, Pennsylvania ntral la rt Reporting Services 0-863-3657. 717-258-3657 . 717-258-0383f= courtreporters4u@aoLcom a 1 Gll.RY BURFCRD, Plaintiff, NJ. 1:0)-02-2082 " CUANE :.E.B8, an adult individual, 4 and [)Jane Lebo, in his capacity as forrrer Chief of Police of the :, 1>b..m,. Holly Springs Police ceoart.:rent, and JAMES BRADLEY, 6 an' adult. individua.i., and JAMES 3AAI)LEY, in his official capaci:y as ar. Officer of the Mount Ho~ly Springs Police Department, and 8 L'le MJJNT HJi...LY SPRlNGS B:ROJG-l, r.Rfenda.nL~ 9 10 ::'1 :2 13 H :J 16 18 19 20 " 22 23 24 2:' 2 DEFrnENT Jl.J1::GE SYLVIA H. fW\1EO JURY >RIAL [{Mtl.NOED D8pJsition of: JMES P. IliRAtILi:Y Taken by: PlaintEf Before: Jennifer L. Sirois, Court Reporter, Notary Public CEte: May 27, 2003, 2: 45 p.rn, Place: Raninger f. Bayley 155 South Hanover Street Carlisle, Pennsylvania nax '" == EX/lMINIl,TICN ,AGE 4 3 JanES P. Bradley By M.r. Rani nger E " 9 ::.0 11 12 NO" "-3 (None. I 14 :5 16 ~ 6 is 20 21 n 23 24 25 I nax",El<llIBl'l'S DES::RIPTICN 'AGE 1 APPEAPJ\I'J::ES: 2 3 """""'" , BAYlEY BY: KARL E. PCMrNGER, ES::;UIRE Ft:R - PlAINTIFF :':J..VFRY, FAHERTY, YOJNG (. PATI'ER9:N, P.C. SY: JAME'S D. rooNG, ESQJIRE FCR - DEf'E:NDll.NTS 6 ALSO PRESENT: MIOiAF.:L WHIIRE, iJ..I.L\NE L. LEBJ and GJY W. BURFCRD 10 11 12 13 14 15 " )7 18 19 20 21 22 23 24 25 STIPln:ATIQI It is hereby stipulated by and bet~n the 3 respective parties that signing, sealing, certification and 4 filing are v.sived; and that all objections except as to the 5 fonn of the question are reserved until the tirre of tria::. 6 7 JMES P. 1liRAtILi:Y, called as a witness, being 8 duly s...oril, was examined and testified as folla,..,ls: 9 10 """"""'" 11 BY JItR. FO{[NGffi: 12 Q. Sir, can JIOU give your name and address fo.:: t.fJe 13 record? 14 15 A" JaIreS Bradley -- Q. You don't have to give a hooe address. Are you 16 currently atployed anyv-here? 17 A. Chambersburg Borough Police D3partment. :8 Q. Okay. So that's Wlere W2 could get a hold of 19 you if \-.e' d needed to, not that there ....ould be any reason 20 for us to get a hold of him .since he's represented by 21 counsel. I mean for the record. When did you leave 22 arplo;,.rnent with the Borough of M:lunt Holly? 23 A. That should have been, 111'.f last active day w:JUld 24 have been, I want to say the 30th of P-flril of 2001. 25 Q. You've heard Chief Lebo's and Mr. Burford's 1 testLTOny about an incident that :::=k place in June of 2 2000? 3 A. Yes. 4 Q. CO you recall that incident? 5 A Yes, Slr. 6 Q. Tell Ire v.tlat happened. .., A. We received a telephone call in at the station 8 that rrorr.ing that core iran council president, Jim Collins, 9 IAenting to knCJw' \J1y GJy Burford was still out walking 10 a.fQl._md on t;,e 5t~eet, that he just seer. him, At that tirre, 1 ~ myself and Chef leOO got the bench w:J.rrant out of the 12 dr~r t.\"jere ..nere \-.e kept thBn in the files; I..e proceeded : 3 to ccme into Carlisle. 1 ~ Q; the way in, Chief leOO, he contacted carIisle 1": E'D by cell phone, advised than ....tJat W2 was going to do, :6 told him a~so v.tlere W2 was go.:ng to. M1enever W2 arrived, 1.' W2 p.illed up on the side of the street there >-tJere he 18 lived, I qcJes5 facing tcwards, I guess tCJvJards the square, 19 if ~u want to get technical about it. At that time, W2 2J exi:::ed Ira!'. the vehicle. 2l Chief Leoo walked up to the side door, and, if I 22 rE!'ll3T'ber con:-ectly, I stood out front there watching the 23 ~ront door. We wasn't sure if it was accessible or not, 2~ Guy care to the d=r, once Guy came to the door, and the 25 chief advised Wly we \.oJas there as far as having a bench Q When you got to the booking center, v.here were L the Carlisle Po~ice? 3 A. Whenever we got :::0 the booking center, they was 4 Just pulling in behind us after we was starting to, if I 5 rarenber co~rectly, we \-.ere starting to exit >-tJenever they 6 pulled in bel"',inc us, started exiting the vehicle. 7 Q. And did they say anything over the bullhorn? 8 A. I don't r€!1lEllber him saying anything over the 9 bullhorn. I r€!1lEllber there was an officer, the first car 1 [) that pulled up tl1.ere was an officer, and Wlenever he got ou'" he INaS yelling sarrething, but = couldn't -- there was 12 ".raffic TJat rrorning, and: couldn't ffi3ke out >-tJat he was 13 saying at the time. : ~ Q. SO ::i1ere was rroIe than one Carlisle Police car? 15 A. We':'l, Wlenever we finally got Gly out of the car 16 there a: booking, I think there was sanething like tt.ree, I . ~ w:J.n::: to say c..'lree, maybe four vehicles. 18 Q. And you had not called than for backup, correct? ~ 9 A, No. 2 [) Q. Did you learn ....ny they CarrE? .:: A. Afte.rv..ards, yeah. 22Q. Wnat did you learn? 23 A. Supposedly they received a carplaint that there 24 was a guy being rrugged on the sidewalk or being beat up or 25 sanething to that effect. 1 warrant for him and placed him under arrest. At that tiIre, 2 we stepped into the house. GJy stated that he had clothes 3 in the \.;asher; he I-08Ilted to take care of that, shut it off. 4 He needGd to get a shirt, and, if I rElTEll'bar correctly, a 5 pair of shoes also. 6 :)nee he did all this, I advised G.ly that ~e \.oJas 7 going to be handcuffed; and if he cooperated, he'd be 8 handcuffed ln the front, \J1ich G.ly agreed to cooperate, and 9 that's how he was cuffed. Ymenever we exited the 10 residence, l=ked it up, secured it, walked out to the 11 vehicle, Oiief walked around the driver's side of the truck 12 to get in. 13 I opened the passenger side, and that's vkienever 14 G..iy started resisting, said he wasn't going along with us. 15 He grabbed a hold of the truck there, hung on. I tried to 16 get him l=se. 5cmev.here along the line there, we feL. to 17 the ground. By that tirre, the chief was over there; W2 18 struggled around there a little bit. DJe to Guy didn't 19 COCIperate with us, we undid the one cuff to cuff him behind 20 so that he Io.OUldn't be near as resistant. 21 In doing so, sare!1a,.; I W)und up with a cut dcMrn 22 across my arm [ran the cuff that we took l=se fron him. 23 Cnce we::j"ot him cuffed in the rear, we stcxx:i him up, put 24 him in tle truck in betl-.e€n us; and at that tirre, we left 25 for the i=king center. 6 1 Q. Did you end up talking with any of the sheriffs 2 that day? 3 A. Not in reference to this. <I Q. Ever raranber getting intervie..-.ed by any of the 5 county detectives ab:Jut this? 6 A. No, sir. 7 Q. Tell rre v.,hat you were wearing on the day you 8 executed this bench warrant. 9 A. I w:Juld have had a pair of blue jeans on, a pan 10 of ccW:oy boots, probably a western-cut shirt, normal 11 attire I "€ar ....nenever I'm off duty w.ith the exception of 12 the badgE being clipped to my belt and a set of handcuffs. 13 Q. Were you on duty this day? 14 A. No. I w:J.S up originally for a neanng, and that 15 v..ould have been at SUsan Day's office. 16 Q" ill you r€m3'!1ber v..tklt ti.nE that hearing ....ould 17 have been? 18 A. It v..ould have been first thing in the rrorning. 19 Q. What \'.8S the chief wearing? 20 A. He was dressed similar to ho..J I 'v.eS; blue jeans, 21 a pair of boots, ~'m going to guess \-.estern-style shirt. 22 Q. Did you discuss lIJ1y you tcok ..nat vehicle you 23 were goin~ to t.ake, or is it just sarething you did? 24 A. Actually I'm not sure we really discussed it or 25 a'1ything; we just left. It's a proven fact that you pull ~ U;J to sareCJne trJat' s avoiding the law in a marked unit, ;:> tline dlances out of ten you' fe not going to get them to the 3 aoor. Q. Now, do you have the right to enter a premise if 5 yo...; believe that_ there's sorrebody wanted in t.'lere? 6 A" Yes, sir. Q. So even if you pulled up in a marked unit, if no 8 one ansvers the door and you reasonably believe thffn to be 9 present, yo..: can enter, correct? 1'; ~. Or. (;",r~_ain -- warran~s, :-:owever, t..".is one here, ,-' Guy tme to tl1e door; he was visible, We already placed 12 him uncier arres~_ -- '" ~ ~ Q" But, I mean, you could have -- if he hadn't cerre :4 to the door, you w:JUld have gone in, right? 15 A. No, we v..vuldn't have, not in a situation like 16 that. 17 Q. Why not? A. My part of thinking, it' 5 asinine to do that. ], 19 Why enter scrneone's pranises on a warrant if you kno..J he's .?J 1:1 there or not. Felonies, that's one thing. I'm not 2: going:.o enter scrneone's house, locked door, W"iat have you, 22 on a bencr, warrant. 23 Q But you agree you could have ,~ you wanted to? 24 A. Year.. 25 Q" New, j,sn't there serre rules about uniforms and "' Yes. Q. So you've had training about v.klen you can and ;:an'! arrest? A. Yes, 51:. Q. A.'ld maybe you don't knw t'le law behind it, [:€r 6 se, bue: you're given kil1d of a handbcx:;>k of rules, \.\tlat you 7 can and can ':: do as a police officer? A. Well, we get them v.klenever we go through the 9 acaOOny, and we get then, as Olief said, every year we have 10 to take, you kno.J, mandatory updates. ]1 Q, So you were of the Clpinion that day that you 12 didn't have to be in uniform or in a marked patrol car to 1 J maKe an arrest in Carlisle? " .Il... No. l5 Q. And you agree in order to make the arrest, you 16 had to enter the residence of Mr. Burford? 17 A. No. The only reason we entered the residel1ce ] 8 was on account G.ly wanted to take care of his .....,sher, shut 19 it off, get a sr,irt and everything and also for officer 20 safety We done placed him under arrest. He wasn't gOlng 21 to get out of my 5ight due to officer safety. ;u No..J, Wlen you 'Cook hirr. outside, he became Q" 2-1 concerned about the lack of a marked vehicle, didn't he? 24 h. :)nce we l-.ent to get into the chief's pickup 25 tn:ck, yeah. 1 W'len YOlJ can stop a person and arrest a [:€rson and if 2 you're in uniform or out of uniform? 10 3 A If I have a warrant in my hand and W'lether I'm 4 in uniform or out of uniform and I know that person's 5 wanted, I have the right to arrest. 6 Q But you agree there are sane rules about \J1en 7 you have to l-.ear unifoDn, wher. you don't have to W?ar 8 uniform, say, to make traffic stops or certain kinds of 9 arrests? ]0 ~. YOJNG: I object, You're asking him for a 11 legal conclusion. 12 MR. RCMINGER: I thought \-.e \-.ere allo.-.ed to do 13 that today, 14 r-R. y~: A legal conclL:sion? No, you can ask 15 him factual questions. 16 BY I-R. F01IJ'.GR: 17 Q. Were you ever trained on, did you receive any 18 training about ....nen you can and can't arrest? 19 20 A. Sure. Q" For instance, you learn that you can arrest for 21 a SU1lTII3.::y -- well, you can arrest for a misdereanor you 22 see, correct, but you can't arrest for a misdaleanor just 23 on informatbn received? 24 25 A. No. Q, You have to get a warrant then? 11 12 Q. And he requested that you get a unifonred 2 o~ficer, didn't he? A" I don't recall him saying that. I mean, it's 4 possible. I'm not going to sit here and say he didn't. I 5 don't rerertJer him saying it. 6 Q" Did ei ther you or the chief carry a cell phone 7 at that time? A. Olief did. Q. So 'fC'J v.ould have been able to phone the police 10 departrrElnt if you wanted to? 11 12 13 14 15 ]6 A. Yes. Q. And did you all have your radios on you? A. No. Q. Is there a police radio in the chief's ::ruck? A. No. Q. Hew rrany other tines have you transported a 17 prisoner in the chief's truck? 18 A" I don 't recall of any in the pickup. We have 1 g transported t.l']en before in personal vehicles, but 20 that's -- to the best of 1lTj recollection, that's the first 21 I-.e've tr~nsported in his pickup. 22 Q. No..J, you talked to Ire a little bit about o~ficer 23 safety i~sues a minute ago. Police cars are designed to 24 transport pnsoners, correct? 25 A. Yes. Q. And in order to transport Mr. Burford inside the 2 :,,rJCk, you had :.0 have him up ir. the cab with the t"-O of 3 you, didn't you? A" Yes, .,ilr. Q So he w::JUlcin't have been restrained fran kicking 6 or shoving or biting or doing anything short of pulling his 7 hands out fran behind his back? A. Well, I'd have to say that's correct. Q In fact, he, in theory, could have interfered 10 with the operation of the vehicle? 11 A" Yeah, but then I took r,im at his v..ord tco that :.2 he was gcinq to be cooperative. 1] Q" ?art of ]lOUr training is about minimizing risks l ~ ,_C of:icers, correct? ~ 5 ^" Yes. :6 Q If, ir. fact, you were planning to arrest him 1 that day and :.ransport him to the booking center, wt\y : 8 v.ouJdn' t you have taken a squad car? 19 '" I mentioned earlieL, people that's running fral'l 20 :he law OL wt\at have you, they got a tendency not to ansv.oar L L the door or shew :heir presence wt\enever they see a ffia::"ked 22 un.it puil up. n Q" NCMI, a Il\3.rked unit could have been parked a 2~ block away and yGll could have walked to the house? 25 A. Could have been. 1 to charge him. We W2nt in there; we acted on a warrant. 2 It never really arose to charge him on resisting. Q. You've charged resisting arrest for executing 4 other ......rrants, haven't ]IOU, wt\en defendants resisted? 5 6 A. No, persor.ally I ~n.aven't. Q" Ho..J about your department? Co you ever I recall-- 8 A. CUr department, yea.l-], 'voJ8've arrested on that J before. I've aHes:ed on resisting arres:, but not ...mere 10 I'm carrying any......rrant. 11 Q. No one told yo..! not to file it or persuaded you 12 fran filing charges .in this case? 13 A. No. 14 Q. Co you rEID3T1ber the booking center asking you if 1~. 'lOll ......nted t.o f:le c'larges? ;6 A" don':. rEID3T1be::". I don't rffT'lE!lt€r anyone 17 asking rre I don't kna.v 1Jl'y' they \-,QuId ask rre at that 18 time. :9 Q" D:J you feel you v.ere giving Mr. Burford kind of 20 a break by not filing than? 21 A. No. 22 Q. Just sanet.'1ing ]IOU just v..ouldn't have done? A. No, it's not sarething I just w:>uldn't have 23 24 done. It just, I don't know, it just never crossed my mind ie: to ,..harge r_irr; with resisting that day. Maybe new I should 13 15 , 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 " 25 Q. Ole of you could have been in unifonn; one of 14 2 you could have been out of unifonn, correct? A. That '5 p8ssible too. Q. Besides JIOur attorney and the chief, have you 5 talked to anybcdy else about this case? 6 A. No. Q. After you released Mr. Burford to the booking 8 center, hew long did you rem3.in? A" It wasn't very long. I lTEan, we did ....nat \-.e had IOta do up there as far as getting hiJr. checked in and we 11 left. 12 Q. No..J, it's your opinion that Mr. Burford resisted :3 arrest? 14 15 A. Yes. Q. Are you familiar with a criminal charge that's 16 ffi3.de out by resis~ing a.::-rest? 17 18 A. Try that again. Q. Are you familiar with a criminal charge that i 9 really i.-; called resisting arrest? 20 21 22 23 A. Yeah. Q. It's a criminal activity? A. Yeah. Q" for sane reason you chose not to prosecute 24 Mr. Burford. 25 A" I chose not to? I didr.'t knew the decision was 1 have. I'm starting to think I should have. 16 2 Q" I cIon't want you not to give anylxx:ly a break 3 because of ....nat we asked today. A. C1l, don't v..orry. No one's going to get a break 5 fraTl here on out. !'R. POvIINGER: I don't have any other questions 7 for the officer. ~. YaJNG: No questions. (Whereupon, the deposition was concluded at 3:04 p.m.) 1 ~TH Of PENNSYLVANIA ) I 55. 2 CDJNI"f Of CLMBERlAND ) 3 I, JENNIFER L. SIROIS, a Court :, Reporter-Notary ?uhlic authorized to acininister oaths and '5 '~ake de~s:.t:ons in the trial of causes, and having ar. 7 cffice ir. ::::arlisle, Pennsylvania, do hereby certify that 8 !:rte foregolng lS the testimony of .:wES P. BAllDtEr. I !'urther certify that before the taking of 1() s;:lid depJsition the witness was duly .9v.Orn; that the 11 quesriofl5 and ans...€rs were taken dcwn stenotype by :he said ~2 Report_e,,-Notary, approved and agreeo to, and afteIVoJards 13 !"educed ~o cmputer printout under the direction of said 14 Reporter. "' I further certify that the proceedings and 16 evidence are contained fully and accurately in the notes 17 :.aken by me on the within deposition, and that this copy is 1 e a correct transcript of the same. 19 In testirrony ...nereof, I have hereunto 20 :nscrit>ed my hand this 2nd day of July, 2003. 21 22 23 Notary <'Ubllc 2~ 25 17 .0. 04 [1] 16:9 . 1 1 [1] 1: 1 155 [1] 1: 19 .2. 2 [1] 2000 2001 2003 17:20 27 [1] 1: 17 2nd [1] 17:20 1:17 [1] 5:2 [1] 4:24 [2] 1 :17; - 3 . 3 [1] 16:9 30th [1] 4:24 .4. 4 [1] 3:3 45 [1] 1:17 . A. able [1] 12:9 academy [1] 11 :9 accessible [1] 5:23 account [1] 11: 18 accurately [1] 17:16 across [1 J 6:22 acted [1] 15:1 active [1] 4:23 activity [1] 14:21 address [2] 4: 12, 15 administer [1] 17:5 adult [2J 1 :3, 6 advised [3] 5: 15, 25; 6:6 afterwards [2J 7:21; 17:12 again [1] 14:17 ago [1] 12:23 agree [3] 9:23; 10:6; 11 :15 agreed [2] 6:8; 17:12 allowed [1] 10: 12 along [2] 6:14, 16 [lJ [2] 9:8; answer 13:20 answers 17:11 anybody 14:5; 16:2 anyone 15:16 anywhere 4:16 appearances 2:1 approved 17: 12 april [1] 4:24 arm [1 J 6:22 arose [1] 15:2 around [3] 5: 1 0; 6:11, 18 arrest [18] 6: 1; 9: 12; 10:1, 18, 20, 21, 22; 11:3, 13, 15, 20; 13:16; 14:13, 16, 19; 15:3, 9 arrested 15:8, 9 arrests [1] 10:9 arrived [1] 5:16 asinine [1] 9:18 ask [2] 10:14; 15: 17 asked [1] 16:3 asking [3] 10:10; 15:14, 17 attire {1] 8: 11 attorney [1] 14:4 authorized [1 J 17:5 avoiding [1] 9:1 away [1] 13:24 [2] [1] [1] [1] [1] [2] . B . back [lJ 13:7 backup [1] 7:18 badge [1] 8:12 bayiey [2] 1:18; 2:2 beat [1] 7:24 became [1] 11:22 behind [5] 6: 19; 7:4, 6; 11 :5; 13:7 believe [2] 9:5, 8 belt [1] 8:12 bench [4J 5:11, 25; 8:8; besides best [1] between 6:24 bit 12:22 biting [lJ 13:6 block [1] 13:24 blue [2] 8:9, 20 booking [7J 6:25; 7:1, 3, 16; 13:17; 14:7; 15: 14 boots [2] 8: 1 0, 21 borough [3] 1:8; 4: 17, 22 bradley [7] 1:5, 6, 14; 3:3; 4:7, 14; 17:8 break [3J 15:20; 16:2, 4 bullhorn [2] 7:7, 9 burford [9] 1: 1; 2:7; 5:9; 11:16; 13:1; 14:7, 12, 24; 15:19 burford's 4:25 9:22 [1] 14:4 12:20 [2] 4:2; [2] 6:18; [1] . C - c [1] 2:4 cab [1] 1 :3:2 call [1] 5:7 called [31 4:7; 7:18; 14:19 came [2] 5:24; 7:20 can't [4] 10:18, 22; 11 :3, ;' capacity [2] 1 :4, 6 car [5] 7:9, 14, 15; 11:12; 13:18 care [2] 6:3; 11 :18 carlisle [7] 1 :19; 5: 1 3, 14; 7:2, 14; 11: 13; 17:7 carry [1] '12:6 carrying [1] 15:10 cars [1] 1 :2:23 case [2] 14:5; 15:12 causes [1] 17:6 cell [2] 5: 15; 12:6 center [6] 6:25; 7:1, 3; 13:17: 14:8; 15:14 certain [2] 9:10; 10:8 certification [1] 4:3 certify [3] 17:7, 9, 15 chambersburg [1] 4: 17 chances [1] 9:2 charge [5] 14:15, 18; 15:1, 2, 25 charged [1] 15:3 charges [2] 15:12, 15 checked [1] 14:10 chief [13] 1 :4; 4:25; 5:11, 14, 21,25; 6:11,17; 8:19; 11:9; 12:6, 8; 14:4 chief's [3J 11:24; 12:14,17 chose [2] 14:23, 25 clipped [lJ 8:12 clothes [1] 6:2 collins [1] 5:8 commonwealth [lJ 17:1 complaint [1] 7:23 computer [lJ 17:13 concerned [1] 11 :23 concluded [1] 16:9 conclusion [2] 10: 11, 14 contacted [1] 5: 14 contained [1] 17:16 cooperate [2] 6:8, 19 cooperated [1] 6:7 cooperative [1] 13:12 copy [1] 17:17 correct [8] 7: 18; 9:9; 10:22; 12:24; 13:8, 14; 14:2; 17:18 "correctly [3] 5:22; 6:4; 7:5 couldn't [2] ,. 7:11, 12 council [1] 5:8 counsel [1] 4:21 county [2] 8:5; 17:2 court [2] 1:16; 17:4 cowboy [1] 8:10 crim inal [3] 14:15, 18, 21 crossed [1] 15:24 cuff [3] 6:19,22 cuffed [2] 6:9, 23 cumberland [1] 17:2 currently [1] 4:16 cut [1] 6:21 cv-02-2082 [1] 1:1 - 0 - date [1] 1:17 day [8] 4:23; 8:2, 7, 13; 11: 11; 13:17; 15:25; 17:20 day's [1] 8:15 decision [1] 14:25 defendants [3] 1 :8; 2:5; 15:4 demanded [1] 1 :8 department [6] 1 :5, 7' 4:17; 12:10; 15:6,8 deponent [1] 3:2 deposition [4] 1 :14; 16:9; 17:10,17 depositions [1] 17:6 description [1] 3:12 designed [1) 12:23 detectives [1] 8:5 direction [1] 17:13 discuss [1] 6:22 discussed [1] 8:24 door [10] 5:21, 23, 24; 9:3, 8, 11, 14, 21; 13:21 drawer [1) 5:12 dressed [1] 8:20 driver's [1] 6: 11 duane [3] 1:3, 4' 2:7 due [2] 6:18; 11 :21 duly [2] 4:8; 17:10 duty [2] 8:11,13 - E - earlier [1] 13:19 effect [1] 7:25 either [1] 12:6 else [1] 14:5 employed [1] 4:16 employment [1] 4:22 end [1] 8:1 enter [5] 9:4, 9, 19, 21; 11 :16 entered [1] 11 :17 esquire [2] 2:2, 4 even [1] 9:7 every [1] 11:9 everything [1] 11 :19 evidence [1] 17:16 examination [2] 3:2; 4:10 examined [1] 4:8 except [1] 4:4 exception [1] 8: 11 executed [1] 8:8 executing [1] 15:3 exhibits [1] 3:11 exit [1] 7:5 exited [2] 5:20; 6:9 exiting [1] 7:6 - F - facing [1] 5:18 fact [3] 8:25; 13:9, 16 factual [1] 10:15 faherty [1] 2:4 familiar [2] 14: 15, 18 far (2) 5:25; 14:10 feel [1] 15:19 fell [1] '6:16 felonies [1] 9:20 file [2] 15: 11, 15 files [1] 5:12 fi Ii n g [31 4:4; 15: 12, 20 finally ('I] 7:15 first [3,] 7:9; 8:18; 12:20 follows 111] 4:8 foregoin!l [1] 17:8 form [11 4:5 former [1] 1:4 four [1] 7:17 front [,I) 5:22, 23; 6:8 fully [1] 17:16 further [2] 17:9, 15 - G - gary [1] 1:1 giving [1] 15:19 gone [1] 9:14 grabbed [1] 6: 15 ground [1] 6:17 guess [:l] 5:18; 8:21 guy [1'1] 2:7; 5:9, 24; 6:2, 6, 8, 14, 111; 7:15, 24; 9:11; 11: 18 - H . h [1] 1:4 hand [2] 10:3; 17:20 handbool, [1] 11:6 handcuff"d [2] 6:7, 8 handcuff.. [1] 8: 12 hands [1] 13:7 hanover [1] 1:19 happened! [1] 5:6 he'd [1] 6:7 heard [1] 4:25 hearing [2] 8:14, 16 hereby [2] 4:2; 17:7 hereunto [1] 17:19 hold [3] 4:18, 20; 6:15 holly [4] 1 :5, 7, 8; 4:22 home [1] 4:15 house [3] 6:2; 9:21; 13:24 however [1] 9:10 hung [1] 6:15 . 1- incident [2] 5:1, 4 index [2] 3:1,11 individual [2] 1 :3, 6 information [1] 10:23 inscribed [1] 17:20 inside [1] 13:1 instance [1] 10:20 interfered [1] 13:9 interviewed [1] 8:4 isn't [1] 9:25 issues [1] 12:23 - J - james [8] 1:5,6, 14; 2:4; 3:3; 4:7, 14; 17:8 jeans [2] 8:9, 20 jim [1] 5:8 judge [1] 1:4 july [1] 17:20 june [1] 5:1 jury [1] 1:8 - K - karl [1J 2:2 kept [1] 5:12 kicking [1] 13:5 kind [2] 11 :6; 15:19 kinds [1] 10:8 - L - lack [1] 11:23 last [1] 4:23 lavery [1] 2:4 law [3J 9:1; 11 :5; 13:20 learn [3] 7:20, 22; 10:20 leave [1J 4:21 lebo [6] 1 :3, 4; 2:7; 5:11, 14, 21 lebo's [1] 4:25 left [3] 6:24; 8:25; 14:11 legal [2] 10:11, 14 line [1] 6:16 little [2] 6:18; 12:22 lived [1] 5:18 locked [2] 6: 1 0; 9:21 long [2] 14:8, 9 loose [2] 6: 16, 22 - M- mandatory [1] 11: 1 0 marked [6] 9:1, 7" 11 :12, 23; 13:21, 23 maybe [3] 7:17; 11:5; 15:25 mean [4] 4:21; 9:13; 12:3; 14:9 mentioned [1] 13:19 michael [1] 2:7 mind [1] 15:24 minimizing [1] 13:13 minute [1] 12:23 misdemeanor [2] 10:21, 22 more [1] 7:14 morning [3] 5:8; 7: 12; 8: 18 mount [4] 1 :5, 7, 8; 4:22 mugged [1] 7:24 myself [1] 5:11 - N - name [1] 4:12 near [1] 6:20 needed [2] 4:19; 6:4 never [2] 15:2, 24 nine [1] 9:2 none [lJ 3:13 normal [1] 8:10 notary [2] 1:16; 17:22 notes [1] 17:16 - 0- oaths [1] 17:5 object [1] 10:10 objections [1] 4:4 office [2] 8: 15; 17:7 officer [9] 1:7; 7:9, 10; 11:7, 19, 21; 12:2, 22; 16:7 officers [1] 13:14 official [1] 1:6 once [4] 5:24; 6:6, 23; 11 :24 one [8] 6:19; 7:14; 9:8, 10, 20; 14:1; 15: 11 one's 11] 16:4 opened [1] 6:13 operation [1] 13:10 opinion [2] 11: 11; 14: 12 order [2] 11:15; 13: 1 originally [1] 8:14 outside [1] 11 :22 over [3] 6: 17; 7:7, 8 - p - page [2] 3:2, 12 pair [4] 6:5; 8:9, 21 parked 11] 13:23 part [2] 9:18; 13: 13 parties [1] 4:3 passenger [1] 6:13 patrol [1] 11:12 patterson [1] 2:4 pd [1] 5:15 pennsylvania [3J 1: 19; 17: 1, 7 people [1] 13:19 per [1] 11:5 person [2] 10:1 person's [1] 10:4 personal [1] 12: 19 personally [1] 15:5 persuaded [1] 15: 11 phone [3] 5: 15; 12:6, 9 pickup 11 :24; place 5: 1 placed [3] 6: 1; 9: 11; 11 ::20 plaintiff [3] 1: 1, 15; 2:3 planning 13: 16 police [10] 5, 7' 4: 17; 14; 11:7; 14, 23 possible 12:4; 14:3 premise [1] 9:4 premises [1] 9:19 presence 13;21 present [2] 2:6; 9:9 president 5:8 printout 17: 13 prisoner 12:17 prisoners 12:24 probably 8:10 proceeded 5: 12 proceedlnl~s [1] 17:15 prosecute 14:23 proven [1] 8:25 public [3] 1: 16; 17:5, 22 pull [2] 8:25; 13:22 j pulled [4] 5: 17; 7:6,10; 9:7 pulling [2:] 7:4; 13:6 [3] 12:18, 21 [2] 1: 18; [1] 1:4, 7:2, 12:9, [2] [1 ] [1] [1 ] [1] [1] [1] [1] [1] - Q - question [1] 4;5 questions [4] 10:15; 16:6, 8' 17:11 - R - radio [1] 12:14 radios [1] 12:12 rambo [1] 1:4 really [3] 8:24; 14: 19; 15:2 rear [1] 6:23 reason [3J 4:19; 11 :17; 14:23 reasonably 9:8 recall [4] 5:4; 12:3, 18; 15:7 receive [1] 10:17 received [3] 5:1; 7:23; 10:23 recollection [1] 12:20 record [2J 4: 13, 21 red uced 17:13 reference 8:3 released 14:7 remain [1] remem ber 5:22; 6:4; 8, 9; 8:4, 12;5; 15:14, reporter 1:16; 17:14 reporter-notary [2] 17:5, 12 represented [lJ 4:20 requested 12: 1 reserved [1] 4:5 residence [3] 6:10; 11:16,17 resistant [1] 6;20 resisted [2] 14: 12; 15:4 resisting [7] 6:14; 14:16, 19; 15:2,3,9,25 respective 4:3 restrained 13:5 right [3J 14; 10:5 risks [1] 13:13 rom inger [8] 1:18; 2;2; 3:3; 4:11; 10:12, 16; 16:6 rules [3J 9:25; 10:6; 11:6 running 13:19 - S - [lJ [1] [1] [1] 14:8 [llJ 7:5, 16; 16 [2J [1] [1] [1] 9:4, [lJ safety [3] 11 :20, 21; 12:23 said [5] 6:14; 11 :9; 17:10, 11, 13 same [1] 17:18 saying [4] 7:8, 13; 12:3,5 se [1] 11:6 sealing [1] 4:3 secured [1] 6:10 set [1] 8:12 sheriffs [1] 8:1 shirt [4] 6:4; 8:10,21; 11:19 shoes [1] 6:5 short [1] 13:6 shoving [1] 13:6 show [1] 13:21 shut [2] 6:3; 11: 18 side [4] 5:17, 21; 6:11, 13 sidewalk [1] 7:24 sight [1] 11:21 signing [1J 4:3 similar [1] 8:20 sir [6J 4:12; 5:5; 8:6; 9:6; 11 :4; 13:4 sirois [2] 1:16; 17:4 sit [1] 12:4 situation [1] 9: 15 somebody [1] 9:5 somehow [1] 6:21 someone [1] 9:1 someone's [2] 9: 19, 21 somewhere [1] 6:16 south [1] 1:19 springs [3] 1 :5, 7, 8 squad [1] 13:18 square [1] 5:18 sta rted [2] 6: 14; 7:6 starting [3] 7:4, 5' 16:1 stated [1] 6:2 station [1] 5:7 stenotype [1 J 17: 11 stepped [1] 6:2 still [1] 5:9 stipulated [1] 4:2 stipulation [1] 4:1 stood [2] 5:22; 6:23 stop [1] 10:1 stops [1] 10:8 street [3] 1 :19; 5:10, 17 struggled [1] 6: 18 sum mary [1] 10:21 supposedly [1 J 7:23 sure [3] 5:23; 8:24; 10:19 susan [1] 8:15 sworn [2] 4:8; 17:10 sylvia [1] 1:4 - T - [4] 1 :15; 17:11, 17 [1] 17:9 [2] 12:22; taken 13:18; taking talked 14:5 talking [1] 8:1 technical [1] 5:19 telephone 5:7 tell [2] 5:6; 8:7 ten [1] 9:2 tendency 13:20 testified [1] 4:8 testimony [4J 3:1; 5:1; 17:8, 19 than [1] 7:14 their [lJ 13:21 theory [1] 13:9 thing [2] 8:18; 9:20 think [2] 7:16; 16:1 thinking 9:18 thought 10:12 three [2] 7:16, 17 through [1] 11:8 time [10] 4:5; 5:10, 19; 6:1, 17, 24; 7:13; 8:16; 12:7; 15:18 times [1] 12:16 today [2] 10:13; [1] [1] [1] [1J 16:3 told [2] 5:16; 15: 11 took [5] 5: 1; 6:22; 8:22; 11:22; 1:1:11 towards [2] 5:18 traffic [.2] 7: 12; 10:8 trained [1] 10:17 training [3] 10:18; 11 :2; 13:13 transcript [1] 17: 18 transport [3] 12:24; 1 :1: 1, 17 transported [3J 12:16,19,21 trial [3] 1 :8; 4:5; 17:6 tried [1] 6:15 truck [7] 6: 11, 15, 24; 11:25; 12:14, 17; 13:2 try [lJ 14:17 two [1] 13:2 - U - under [4] 6:1; 9: 12; 11 :20; 17: 13 undid [lJ 6:19 uniform [9] 10:2, 4, 7, 8; 11:12; 14:1,2 uniformed [1] 12: 1 uniforms [lJ 9:25 unit [4] 9:1, 7; 13:22,23 until [1] 4:5 up [14] 5:17,21; 6:10, 2'1, 23; 7:10,24; 8:1,14; 9:1, 7; '13:2, 22; 14:10 updates [1] 11:10 us [6] 4:20; 6:14, 19,24; 7:4, 6 - V - vehicle [6] 5:20; 6:11; 7:11; 8:22; 11 :23; 1:1:10 vehicles [2] 7:17; 12:19 very [1] 14:9 visible [lJ 9:11 - W - w [lJ 2:7 waived [1] 4:4 walked [4J 5:21; 6:10,11; 13:24 walking [1] 5:9 want [4] 4:24; 5:19; 7:17; 16:2 wanted [7] 6:3; 9:5, 23; 10:5; 11 :18; 12: 10; 15:15 wanting [1] 5:9 warrant [9] 5:11; 6:1; 8:8; 9:19, 22; 10:3, 25; 15:1, 10 warrants [2] 9:10; 15:4 washer [2] 6:3; 11: 18 watching [1] 5:22 way [1] 5:14 we've [2] 12:21; 15:8 wear [3] 8:11; 10:7 wearing [2J 8:7, 19 western-cut [1] 8: 1 0 western-style [1] 8:21 whare [lJ 2:7 whenever [10J 5:16; 6:9, 13; 7:3, 5, 10, 15; 8:11; 11 :8; 13:21 whereof [1] 17: 19 whereupon [1] 16:9 whether [1] 10:3 why [8] 5:9, 25; 7:20; 8:22; 9:17, 19; 13:17; 15:17 within [1] 17:17 witness [2] 4:7; 17:10 word [lJ 13:11 worry [1] 16:4 wouldn't [6] 6:20; 9: 15; 13:5, 18; 15:22,23 wound [1] 6:21 '" . y . year [1] 11:9 yelling [1] 7:11 young [5] 2:4; 10:10, 14; 16:8 / IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL VANIA GUY BURFORD,! Plaintiff CIVIL NO. 1:CV-02-2082 v. D @@@[]\'b'@ n NOY - 5 2003 U DUANE LEBO, etal., Defendants MEMORANDUM Before the court is Defendants' motion for partial summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The parties have briefed the issue, and the matter is ripe for disposition. I. Background The following facts are undisputed.2 Defendant Duane Lebo ("Lebo") is the former Chief of Police for Defendant Mt. Holly Springs Borough ("the Borough"). In addition to serving as the chief ofpo:iice for the Borough, Lebo was a Cumberland County Detective through the District Attorney's office. Defendant Bwford. 1 In previous memoranda, the court erroneously referred to Plaintiff as Gary Bwford instead of Guy 2The undisputed facts are taken from "Defendants' Concise Statement Undisputed Material Facts," which was submitted in support of Defendants' motion for summary judgment. Middle District Local Rule 56. I requires that "[t]he papers opposing a motion for summ~"Y judgment shall include a separate, short and concise statement of material facts, responding to the numbered paragraphs set forth in [the moving party's statement of material filets], as to which it is contended that there exists a genuine issue to be tried. . .." The rule goes on finther to require that "[a]1I material facts set forth in the statement required by the moving party will be deemed to be admitted unless controverted by the statement served by the opposing party." In his response to Defendants' statement of material fucts, Plaintiff did not file a counter statement of material facts that complied with Local Rule 56" I. Instead, Plaintiff choose to respond to only ten of Defendants ' forty-eight statements of material fuct. Of those ten Plaintiff responded to, Plaintiff admitted seven and denied three. However, Plaintiff's purported denials do not correspond to the aveonnents set forth in Defendants' statement of material facts. Thus, in accordance with Local RuIe 56. I, the court deems Defendants' statements of material facts to be admitted. EXHl81T I e James Bradley ("Bradley") is a police officer fonm:rly employed by the Borough. Both Lebo and Bradley were trained as municipal police officers and both annually completed their in-service training. It is the policy, practice, and custom of the Borough Police Department ("Police Department") to use only the amount of force that the officer determines to be reasonable and necessary in making an arrest. In Cumberland County, the Sheriff's office provides copies of all outstanding bench warrants on arrests made by Borough police officers and requests the Police Department's assistance in serving those warrants. Those warrants are also published in the local newspaper. In June of 2000, the Police Department had a copy of a bench warrant issued by Judge Hess for Plaintiff because of Plaintiff's failure to appear at a hearing. On the morning of June 14,2000, the Borough Council President asked Lebo why Plaintiff was still on the street when there was a bench warrant out for his arrest. The Police Department determined that Plaintiff had moved out of the Borough, but resided in Carlisle, Pennsylvania. When Lebo serves a bench warrant outside of the Borough, he notifies the local policing agency of his presence. On June 14,2000, Lebo contacted Carlisle's police department to inform the commanding officer that he was going to arrest Plaintiff on the outstanding bench warrant. After notifYing Carlisle police, Lebo and Bradley proceeded to Plaintiff's residence in Lebo's private vehicle, a 1979 GMC pickup truck. Upon arriving at Plaintiff's residence, Lebo informed Plaintiff that they had a warrant for his arrest, read the warrant, and walked Plaintiff out to the pickup. Plaintiff was handcuffed with his hands in the front because he was cooperating. Upon approaching the truck, Bradley stayed with Plaintiff while Lebo went around to the driver's side of the pickup. In an effort to resist being placed in Lebo's truck, Plaintiff grabbed the bed of the pickup and refused to let go despite being asked to 2 / do so several times. Bradley tried to pry Plaintiffs hands loose and in so doing pulled Plaintiff and himself to the ground. Plaintiff hit the ground with his rear end ftrst. Once on the ground, Plaintiff resisted Bradley's and Lebo's attempts to remove his handcuffs and re-handcuffhim with his hands behind his back. On the ground, Lebo and Bradley struggled with Plaintiff but were eventually successful in getting his hands cuffed behind his back. At some point during this struggle, Plaintiff sustained abrasions to the side of his head, his knees, and his left elbow. Plaintiff also sustained an injury to his shoulder. Once Bradley and Lebo got Plaintiffs hands behind his back, they stood him up and put him in lhe truck. From there they proceeded to the booking center. At the time of the arrest, both Bradley and Lebo were dressed in plain clothes. Plaintiff admitted in his deposition that other than attempting to pry Plaintiff's fmgers off of the bed of the truck and attempting to move Plaintiff's anns behind his back to be handcuffed, Bradley did not use any other force against Plaintiff to effectuate his arrest. (Defs.' Ex. D, Buri'ord Depo. at 75, Ins. 14-20.) Plaintiff knew at the time of his arrest that he was being arrested on an outstanding bench warrant. fuitially, Plaintiff ftled a civil action in the Court of Common Pleas of Cumberland County on May 31, 2002. Plaintiffs Complaint asserts claims for assault and battery (Count I) and false imprisonment/false arrest (Count II) against Defendants Lebo and Bradley. Plaintiff also asserts a claim pursuant to 42 D.S.C. S 1983 (Count 1lI) against all Defendants for alleged violations of Plaintiff's Fourth, Eighth, and Fourteenth Amendment rights. Defendants removed the case to this court on November 19,2002. After discovery, Defendants ftIed the instant motion for partial summary judgment on August 8, 2003. 3 II. Legal Standard: Summary Judgmtmt Summary judgment is proper when ''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 oflaw." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228,231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis which would allow a reasonable fact-fmder to return a verdict for the non-moving party. Id. at 249. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Gans v. Mundy, 762 F.2d 338,341 (3d Cir. 1985); see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317,324 (1986). Instead, he must "go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-323. " 'Such affirmative evidence - regardless of whether it is direct or circumstantial- must amount to more than a scintilla, but may ammmt to less (in the evaluation of the 4 ." i \ court) than a preponderance.' " Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,460-61 (3d Cir. 1989)). ill. Discussion Defendant Bradley argues that the court should grant him summary judgment as to Count I because the undisputed facts do not rise to the level of assault or battery. Additionally, Defendant Bradley argues that he is entitled to qualified immunity. As to Count II, Defendants argue that the court should grant summary judgment because the undisputed facts demonstrate that probable cause existed for Plaintiff's arrest pursuant to the outstanding bench warrant. Moreover, Defendants argue that it was lawful for them to arrest Plaintiff at his residence in Carlisle, which is located outside the Borough limits, because they notified the Carlisle police department prior to arresting Plaintiff. In the alternative, Defendants argue that their arrest was privileged because Defendant Lebo was, in addition to being the Borough's police chief, a Cumberland County Detective with countywide jurisdiction. In the further alternative, Defendants argue that they enjoy a good faith qualified immunity as long as their conduct did not violate a clearly established constitutional right of which a reasonable person should have known. Finally, Defendants argue that the court should grant summary judgment as to Count III because Plaintiff has failed to come forward with evidence suggesting that the actions of Defendants Lebo and Bradley were taken pursuant to an official municipal policy. 5 ( For his part, Plaintiff agrees with Defe:ndants' analysis of Count III and stipulates that Defendants are entitled to summary judgment as to that count. As to Counts I and II, Plaintiff argues that Defendants are not entitled to summary judgment as to these counts because Defendants were not privileged to make the arrest in question. Plaintiff argues that the court should remand the case back to state court for trial. Without further discussion, the court \lrill grant Defendants motion for summary judgment as to Count III, Plaintiff's S 1983 claims. For the reasons that follow, the court will grant Defendants' motion for partial summary judgment on Counts I as to Defendant Bradley and on Count II as to Defendants Lebo and Bradley. However, the court will remand the case back to state court for a trial on Count I as to Defendant Lebo. A. Count I Defendant Bradley argues that the court should grant summary judgment in his favor as to Count I because he did not use unreasonable force in order to effectuate Plaintiffs arrest. Under Pennsylvania law, an assault occurs when an actor intends to cause an imminent apprehension of harmJul or offensive bodily contact. Sides v. Cleland, 648 A.2d 1081 (pa. Super. Ct. 1994). Battery is defined as a harmful or offensive touching. Levenson v. Sauser, 557 A.2d 1081 (Pa. Super Ct. 1989). Pennsylvania law has recognized that police officers are entitled to use some force in order to effectuate an arrest. Pursuant to S 508 of the Pennsylvania Crimes Code, municipal police officers in Pennsylvania are "justified in the use of any force which he believes to be necessary to effect the arrest. . .." 18 Pa. Cons. Stat. S 508(a). Moreover, in Pennsylvania a police officer is justified in committing an assault when making a lawful arrest, provided the force used is reasonable. See 6 ,- Commonwealth v. Jayne, 11 Pa. Super. Ct. 459, __, 1899 WL 4395 at *3 (1899); Mosely v. Yaletsko, 275 F.Supp. 2d 608,613 (E.D. Pa. 2003) (noting that the proper test for evaluating an excessive force claim is one of objective reasonableness). The reasonableness of a particular use of force must be: judged from the perspective of a reasonable police officer on the scene. Id. In the instant case, Plaintiff admits that the only force used by Defendant Bradley was that necessary to pry Plaintiff's hands from the back of the pickup truck and to move Plaintiff's arms behind his back to be handcuffed. (Defs.' Ex. D, Burford Depo. at 75, Ins. 14-20.) Based on this admission, the court concludes that no reasonable jury could find that Defendant Bradll~y committed assault and battery. Plaintiff has come forward with no evidence suggesting that Defendant Bradley was not justified in using this minimal amount of force to effectuate Plaintiff's arrest. It was objectively reasonable for Defendant Bradley to pry Plaintiff's hands from the back of the pickup truck and attempt to handcuffPIaintitI's hands behind Plaintiff's back when he realized that Plaintiff was not cooperating. Consequently, the court will grant Defendant Bradley's motion for summary judgment as to Count 1. B. Count II Defendants Bradley and Lebo argue that the court should grant summary judgment as to Count II because there was probable cause and they were privileged to effectuate the arrest in Carlisle. Pennsylvania defines false arrest as (1) an arrest made without probable cause or (2) an arrest made by an individual without privilege to do so. McGrif.fv. Vidovich, 699 A.2d 797,799, n.3 (Pa. Commw. Ct. 1997). An individual is liable for false imprisonment if "(a) he acts intending to confine the other or third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confmement of the other, and (c) the other is conscious of 7 , ( the confmement or is hanned by it." Gagliardi v. Lynn, 285 A.2d 109, III n.2 (pa. 1971). Additionally, "[a]n arrest based on probable cause [can] not become the source of a claim for false imprisonment." Groman v. Township of Manalapan, 47 F.3d 628,636 (3d Cir. 1995) (citations omitted). It is undisputed that there was an outstanding bench warrant for Plaintiff's arrest at the time Defendants Lebo and Bradley arrested Plaintiff. Consequently, Plaintiff does not dispute that Defendants had probable cause at the time they arrested him. On the contrary, Plaintiff asserts that Defendants Lebo and Bradley were not privileged to effectuate his arrest in the Borough of Carlisle because they did not obtain the consent of Carlisle's chief of police. Specifically, Plaintiff argues that the only evidence adduced by Defendants that they had the permission of Carlisle's chief of police or his designee, was "the self-serving testimony of Defendant Lebo that he had contacted the Carlisle Police." (PI.'s Br. in Opp. to Defs.' Mot. for Sum. 1. at 3.) Plaintiff's reasoning is flawed. First, while there is no indication that Carlisle's chief of police actually consented, PlaintijI has failed to produce a scintilla of evidence suggesting that he protested Defendant Lebo's and Bradley's actions. Moreover, both Defendant Lebo and Defendant Bradley testified at their depositions that Lebo contacted the Carlisle police department en route to effectuating Plaintiff's arrest. (See Defs.' Ex. B, Lebo Depo. at 13, Ins. 8-14; Defs.' Ex. C, Bradley Depo. at 5, Ins. 14-16.) Based on this contact, and absent any evidence to the contrary, it is not unreasonable for the court to presume that the Carlisle police department gave their consent to Plaintiff's arrest. 8 i I Second, in opposing a motion for summary judgment, Plaintiff cannot simply deny Defendants' allegations. Rather, he must "go beyond the pleadings and by his own affidavits, or by the depositions, answe:rs to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324 (internal quotations omitted); see also Saldana, 260 F.3d at 232. Here, Plaintiff has come forward with no evidence suggesting that there is a genuine issue as to whether the Carlisle police department consented to Defendants' arrest of Plaintiff. Both Defendants Lebo and Bradley testified in their deposition that Defendant Lebo contacted the Carlisle police department. Plaintiff cannot merely label this testimony "self-serving" and expect the court to deny Defendants' motion for summary judgment. Absent any evidence to the contrary, the court finds that there is no genuine issue of material fact as to this Issue. Under Pennsylvania law, a municipal police officer has statewide jurisdiction to serve a bench warrant outside of his municipal jurisdiction if he receives the permission of the chief law enforcement officer of the municipality wherein that warrant is served. 42 Pa. Cons. Stat. S 8953(a)(1). Because there is no genuine issue of material fact that Defendant Lebo contacted the Carlisle police prior to arresting Plaintiff, Defendants Lebo and Bradley are entitled to judgment as a matter of law on Count II of Plaintiff's complaint. IV. Conclusion Based on the foregoing, the court will grant Defendants' motion for summary judgment on Count I as to Defendant Bradley, Count II as to Defendants Bradley and Lebo, and Count ill as to all Defendants. The only remaining claim is Plaintiffs claim for assault and battery against Defendant Lebo. Pursuant to 28 9 ( U.S.C. S 1367(c)(3), the court will decline to further exercise its supplemental jurisdiction in this matter. Accordingly, the court will remand the captioned matter back to the Court of Common Pleas of Cumberland County. Because the court declines to further exercise its supplemental jurisdiction, Defendants' motion in limine filed September 19, 2003 is moot. An appropriate order will issue. s/Svlvia H. Rambo Syrvia H. Rambo United States District Judge Dated: November 5,2003. ( ( IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GUY BURFORD, Plaintiff C][VIL NO. 1:CV-02-2082 v. DUANE LEBO, et af., Defendants ORDER In accordance with the forgoing memorandum, IT IS HEREBY ORDERED THAT: (1) Defendant's motion for partial summary judgment is GRANTED. The Clerk of Court shall enter judgment against Plaintiff and for Defendant Bradley as to Count I and against Plaintiff and in favor of all Defendants as to Counts II and III. (2) Pursuant to 28 U.S.C. Ii 1367(c)(3), the court declines to further exercise its supplemental jurisdiction in the captioned matter. (3) The remainder of the captioned cas(~ is remanded to the Court of Common Pleas of Cumberland County. (4) Defendant's motion in limine filed September 19,2003 is MOOT. (5) The Clerk of Court shall close the case file. Dated: November 5, 2003. s/Svlvia H. Rambo ;;ylvia H. Rambo United States District Judge Page 1 of2 ( Linda L. Gustin From: James D. Young Sent: Wednesday, November 05, 20033:34 PM To: Linda L Gustin Subject: FW: Activity in Case 1 :02-cv-02082-SHR Burford v. Lebo, et al "Order on Motion for Partial Summary Judgment" James D. Young, Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 Harrisburg, PA 17101 ivounalallaverylaw"com (717) 233-6633 "IMPORTANT NOTICE" The information contained in this email transmission is privileged and confidential and subject to the attomey/client privilege, and is otherwise protected from disclosure under applicable law. This transmission is intended only for the use of the indivlduai or entity to which it is herein addressed. If the reader of this transmission is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or any information contained herein is strictly prohibited. If you have received this transmission in error, please call 717-233-663:1 and return the transmission to us via email, fax or U.S. First Class mail. We will promptly reimburse you for any costs you incur. -----Original Message----- From: PAM DEfilingstat@pamd.uscourts.gov [mailto: PAMDEfilingstat@pamd.uscourts.gov] Sent: Wednesday, November 05, 2003 2:54 PM To: pamd_ecf_nef@pamd.uscourts.gov Subject: Activity in Case 1:02-cv-02082-SHR Burford v. Lebo, et al "Order on Motion for Partial Summary Judgment" ***NOTE TO PUBLIC ACCESS USERS*** You may view tbe filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Middle District of Pennsylvania Notice of Electronic Filing The following transaction was received from ma, entered on 11/512003 at 2:53 PM EST and filed on 11/5/2003 Case Name: Case Number: Filer: Document Number: 26 Burford v. Lebo, et a1 1 :02-cv-2082 Docket Text: 11/5/2003 Page 2 of2 ( , MEMORANDUM AND ORDER: (1 ) Dft's mtn for partial s/j is GRANTED.The Clrk shall enter jdgmnt against Pltf and for Dft Bradley asto Cnt I and against Pltf and in favor of all Dfts as to Cnts II and III. (2) Pursuant to 28 D.S.C. 1367(c)(3), the crt declines to furtherexercise its supplemental jurisdiction in the captioned matter.(3) The remainder of the captioned case is remanded to the Court ofCornmon Pleas of Cumberland County.(4) Dft's mtn in lim filed 9/19/03 is MOOT.(5) The Clrk shall close the case file. Signed by Judge Sylvia H. Rambo on 11/05/03 (ma, ) The following document( s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp _ ID= 1027698419 [Date= 11/5/2003] [FileNmnber=304139-0] [9ba180a44dd3de0273dlc7444d4121735637d91908faOd8d4df45dba5b6b0f3e0814 1ge30 16d797 e3dbd8dc1geOd0414e9943 7f199864d287 cedafOe8189fa76]] 1:02-cv-2082 Notice will be electronically mailed to: James D. Young jyoung@laverylaw.com, 1:02-cv-2082 Notice will not be electronically mailed to: Karl E. Rominger 155 S. Hanover Street Carlisle, P A 17013 11/5/2003 ./ AO 450 (Rev. 5/85) Judgment in a Civil Case United States District Court MIDDLE DISTRICT OF PENNSYL.VANIA JUDGMENT IN A CIVIL CASE GARY BURFORD Case No: 1 :02-C Plaintiff v. DUANE LEBO, an adult Individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department; Mount Holly Springs Borough; James Bradley, and adult individual, and JAMES BRADLEY, in his official capacity as an Officer of the Mount Holly Springs Police Department Judge Sylvia H. Defendants . Jury Verdict. This action came before the Gourt for a trial by jury. The issues have been tried and the jury has rendered its verdict. . Decision by Court. This action came to trial or hearing before the court. The issues have been tried Dr heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED summary judgment be and is hereby entered in favor of Defendant James Bradley, in his official capacity as an Officer of the Mount Holly Springs Police Department and against the Plaintiff, Gary Burford as to Count I. IT IS FURTHER ORDERED that summary judgment is hereby entered in favor of all defendants, DUANE LEBO; Duane Lebo, an adult Individual, and DUANE LEBO, in his capacity as former Chief of Police of the Mount Holly Springs Police Department; Mount Holly Springs Borough; ,James Bradley, and adult individual, and JAMES BRADLEY, in his official capacity as an Officer of the Mount Holly Springs Police Department as to Counts II and III. Date: November 05, 2003 Mary E. D'Andrea, Clerk of Court /s/ Mark J. Armbruster (By) Mark J. Armbruster, Deputy Clerk EXHIBIT I b CERTIFICATE OF SERVICE I, James D. Young, an attorney with the law firm of Lavery, Faherty, Young & Patterson, P.c., do hereby certify that on this 22nd day of July, 2004, I served a true and correct copy of the foregoing Appendix of Exhibits in Support of Defendant, Duane Lebo's Motion for Summary Judgment, via U.S first-class mail, postage pre-paid, as follows: Guy Burford 424 N. Hanover Street Carlisle, PA 17013 3 n , -, "" 1:::-:'") "~ , c.; , C) -n --, j-/;-=:J -~.- ~ GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYV ANIA v DUANE LEBO, an adult Individual and DUANE LEBO, : CIVIL ACTION-LAW In his capacity as former Chief : Of Police of the Mount Holly Springs Police Department And JAMES BRADLEY, an Adult individual and JAMES BRADLEY, in his capacity as As Officer of the Mount Holly Springs Police Department, And the MOUNT HOLLY SPRINGS BOROUGH, Defendants. : NO. 02-2666 CIVIL TERM IN RE: DEFENDANT DUANE LEBO'S - MOTION FOR SUMMARY JUDGMENT Before HOFFER. P.J. and OLER. J. ORDER OF COURT ~ 1~P1 AND NOW, this r;, day of t'v- U, 2005, upon consideration of Defendant Lebo's Motion for Summary Judgment, it is hereby ORDERED that said Motion is GRANTED and Summary Judgment is entered in favor of Defendant Lebo. By the Court: ~~ I)( \~,\D? O~ If- 28 :(:; t"j .: :l 1!7" Guy W. Burford 424 N. Hanover Street Carlisle, PA 17013 Plaintiff, pro se James D. Young, Esquire 225 Market Street P.O. Box 1245 Harrisburg, PA 17108 Attorney for Defendants GUY BURFORD, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. DUANE LEBO, an adult Individual and DUANE LEBO, : CIVIL ACTION-LAW In his capacity as former Chief : Of Police of the Mount Holly Springs Police Department And JAMES BRADLEY, an Adult individual and JAMES BRADLEY, in his capacity as As Officer of the Mount Holly Springs Police Department, And the MOUNT HOLLY SPRINGS BOROUGH, Defendants. : NO. 02-2666 CIVIL TERM IN RE: DEFENDANT DUANE LEBO'S MOTION FOR SUMMARY JUDGMENT Before HOFFER. P.J. and OLER. J. OPINION Before Hoffer, P.J.: Facts and Procedural History The plaintiff, Guy Burford, initiated this civil action by filing a Praecipe for Writ of Summons on May 31,2002, in the Court of Common Pleas of Cumberland County. On October 22, 2002, pursuant to a Rule issued through the Cumberland County Prothonotary's Office, Plaintiff filed a Complaint against Defendants, Duane Lebo, James Bradley, and Mount Holly Springs Borough, containing three counts and seeking compensatory .. and punitive damages, costs, interest, and attorney's fees. Plaintiff's complaint set forth claims for assault and battery (Count I) and false imprisonment/false arrest (Count II) against Defendants Lebo and Bradley. Plaintiff also attempted to assert claims pursuant to 42 U.S.C. 91983 (Count III) against all defendants for alleged violations of Plaintiff's Fourth, Eighth and Fourteenth Amendment rights. On November 19, 2002, Defendants removed this civil action to the United States District Court for the Middle District of Pennsylvania by filing a Notice of Removal pursuant to 28 U.S.C. 91441 (b). Defendants then filed an Answer to Plaintiff's Complaint denying liability to the Plaintiff and asserting various affirmative defenses, including the individual defendants' immunity from liability under federal and state law. During discovery in the federal court proceedings, the parties conducted the depositions of Defendant Duane Lebo and of Defendant James Bradley. On August 8,2003, Defendants filed a Motion for Partial Summary Judgment, a Concise Statement of Undisputed Material Facts and a supporting Brief in Federal court. On September 10, 2003, Plaintiff filed a Brief in Opposition to Defendants' Motion for Partial Summary Judgment. In his responsive brief, Plaintiff acknowledged that the federal civil rights claims asserted against all three Defendants in Count III of the Complaint should be dismissed and summary judgment granted in favor of the Defendants. However, Plaintiff did oppose the Defendants' dispositive 2 motion on the pendent state law claims, assault and battery (Count I) and false arrest/false imprisonment (Count II). By Memorandum and Order dated November 5, 2003, United States District Court Judge Sylvia H. Rambo granted Defendants' Motion for Partial Summary Judgment. Judge Rambo directed the Clerk of Court to enter judgment against Plaintiff and for Defendant Bradley as to Count I and against Plaintiff and in favor of all Defendants as to Counts II and III of the Complaint. In so doing, the Federal court for the Middle District of Pennsylvania determined that Plaintiff's arrest on June 14, 2000 was lawful and dismissed the false arrest and false imprisonment claims. In addition, pursuant to 28 U.S.C. 91367(c)(3), the court declined to further exercise its supplemental jurisdiction on the remaining claim (assault and battery) against Defendant Duane Lebo. Plaintiff did not file an appeal from Judge Rambo's decision to the United States Court of Appeals for the Third Circuit, and Plaintiff's assault and battery claim (Count I) against Defendant Duane Lebo was remanded to this court. Before this court is Defendant Lebo's Motion for Summary Judgment on the assault and battery claim. A brief in support of Defendant Lebo's Motion for Summary Judgment was submitted. In his motion, Defendant Lebo asserts that pursuant to 18 Pa. C.S.A. 9 508(a), police officers in Pennsylvania are entitled to utilize reasonable and necessary force to effectuate a lawful arrest. He further asserts: (a) that there are no facts in 3 the record that would permit a jury to conclude that excessive force was used to effectuate this arrest, and; (b) that because the United States District Court has already determined that the Plaintiff's arrest on June 14, 2000 was lawful and dismissed the false arrest and false imprisonment claims, the doctrine of collateral estoppel precludes Plaintiff from re- litigating that issue in this court. 1 No answer or responsive brief in opposition to Defendant Lebo's Motion for Summary Judgment was filed by Plaintiff. The contentions of Defendant Lebo will be discussed in the following section of this opinion. In this regard, the factual record relating to the amount of force use to effectuate the arrest will be summarized therein. Discussion Summary judgment, pursuant to Pennsylvania Rule of Civil Procedure 1035(b), should be granted when it is clear that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Pa. R.C.P. 1035(b). In a summary judgment case, the non-moving party must adduce sufficient evidence on the issues essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor; the failure to adduce this evidence establishes that there is no genuine issue of material fact and the 1 Defendant also argues that, pursuant to the Political Subdivision Tort Claims Act, 42 Pa. c.S.A. S 8541 et. seq., he enjoys immunity from liability unless his actions fall within one of the eight exceptions to immunity enumerated in S 8542(b) or unless his conduct constitutes a crime, fraud, actual malice, or willful misconduct pursuant to *8550. 4 moving party is entitled to judgment as a matter of law.2 Moreover, under Pennsylvania Rule of Civil Procedure 1035.3(d), summary judgment may be entered against a party who does not respond to the motion. See Pa. R.C.P. 1035.3 (d). This Rule alone warrants the granting of Defendant Lebo's Motion for Summary Judgment because Plaintiff failed to submit an Answer to the Defendant's Motion. In addition, on the merits, the Plaintiff's claim against Defendant Lebo cannot be sustained. Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.3 In making a lawful arrest, a police officer may use such force as is necessary under the circumstances to effectuate the arrest.4 The reasonableness of the force used in making the arrest determines whether the police officer's conduct constitutes an assault and battery.s A police officer may be held liable for assault and battery when a jury determines that the force used in making an arrest was unnecessary or excessive.6 2 See Ertel v. Patriot News Company, 674 A.2d 1038 (Pa. 1996). 3 Renk v. Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (citing Cohen v. Lit Brothers, 70 A.2d 419,421 (Pa. Super. Ct. 1950) 4 Renk, 641 A.2d at 293. 5Id. 6Id. 5 In the matter sub judice, the record reveals no genuine issue of material fact to prevent Defendant Lebo's Summary Judgment Motion from being granted. When viewed in the light most favorable to the Plaintiff, the facts of record fail to support the contention that Defendant Lebo used excessive force in effectuating the Plaintiff's arrest. In addition, because the United States District Court for the Middle District of Pennsylvania determined that the arrest was lawful, the doctrine of collateral estoppel precludes Plaintiff from re-litigating the issue of the lawfulness of his arrest on June 14, 2000. Therefore, the Plaintiff has failed to present a cognizable claim for assault and battery. With respect to the lawfulness of the Plaintiff's arrest, the doctrine of collateral estoppel prevents an issue from being re-litigated in a subsequent suit when the same issue has already been litigated and fully adjudicated in a court of competent jurisdiction.7 A federal court is certainly a court of competent jurisdiction in the present context. Therefore, it is necessary to determine if the basic criteria of collateral estoppel are satisfied. The doctrine of collateral estoppel applies when four criteria are met8 "(1) an issue decided in a prior action is identical to the one presented in a later action; (2) the prior action resulted in a final 7 Columbia Medical Group, Inc. v. Herring & Roll, P.c., 829 A.2d 1184, 1191 (Pa. Super. 2003). 8 See Rue v. K-Mart, 713 A.2d 82,84 (Pa. 1998). 6 judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action."g Defendant Lebo contends that these four criteria are met in this case. The court agrees. First, it is undisputed in this case that Plaintiff challenged the lawfulness of his June 2002 arrest by asserting claims for false arrest and false imprisonment in Count II of his Complaint. Judge Rambo concluded in her Memorandum and Order that there were no genuine issues of material fact as to the lawfulness of the arrest. The court determined that Plaintiff's claims for false arrest and false imprisonment failed as a matter of law because the arrest was based on probable cause and the Defendants were privileged to effectuate the arrest.10 Second, a final judgment in favor of all Defendants and against Plaintiff on the claims asserted in Count II of the Complaint was entered in the United States District Court for the Middle District of Pennsylvania on November 5, 2003. Therefore, the first two criteria for application of the doctrine of collateral estoppel have been satisfied. 9 [d. 10 See Pages 7-9 of Judge Sylvia Rambo's November 5, 2003, Memorandum and Order, United States District Court. 7 Further, it is clear from the record in this case that Mr. Burford was the Plaintiff in the federal court proceedings. It is also clear that Mr. Burford was, at that time, represented by counsel in those federal court proceedings and his attorney filed a Brief in Opposition to Defendants' Motion for Summary Judgment. As a result, Plaintiff clearly had a full and fair opportunity to litigate the issue of the lawfulness of his arrest in the prior federal court proceedings. Plaintiff, therefore, is barred as a matter of law from re-litigating the issue in the present proceedings. With respect to the reasonableness of the force used to effectuate Plaintiff's arrest, members of a jury would be unable to reasonably conclude, based on the evidence of record, that the force used by Defendant Lebo in effectuating the lawful arrest was excessive or unreasonable. The only facts in the evidentiary record on this point are as follows: The deposition testimony of Defendant Lebo may be summarized as follows: Defendants Lebo and Bradley drove, in Lebo's personal vehicle, to the location where the Plaintiff was living to pick him up on an outstanding bench warrant. Defendant Lebo then proceeded to Plaintiff's residence and knocked on the door.11 Plaintiff answered the door and Defendant Lebo told him that he had a warrant for his arrest. Defendant Lebo placed him under arrest, read the warrant to him, and walked Plaintiff 11 Defendant Lebo's Deposition, page 8. 8 out to his truck. Plaintiff was handcuffed with his hands in the front due to the fact that he was cooperating with the officers.12 Officer Bradley stayed with Plaintiff and Defendant Lebo began to approach the driver's side thinking that Officer Bradley and Plaintiff were going to get into the vehicle without a problem.13 A struggle then ensued.14 Plaintiff was holding on to the bed of the truck, so Defendant Lebo ran back to assist Officer Bradley. Just as Defendant Lebo got there, everyone fell to the ground. Plaintiff's handcuffs were removed, he was rolled over, and then handcuffed with his hands behind his back. The Officers placed Plaintiff in the truck, took him to the booking center, and released him to Sheriff's deputies there.15 The deposition testimony of Defendant Bradley may be summarized as follows: Officer Bradley accompanied Defendant Lebo to serve a bench warrant upon the Plaintiff in Carlisle in June of 2000.16 Defendant Lebo walked up to the side door and Officer Bradley stood out front watching his front door. Plaintiff answered the side door and Defendant Lebo advised him that they had a bench warrant for him and placed him under arrest. 17 12Id. 13Id. 14Id. 15Id. 16 Officer Bradley's Deposition, page 5. 17 Officer Bradley's Deposition, page 5-6. 9 ." At the time, Defendant Lebo and Officer Bradley stepped inside the house while Plaintiff attempted to do laundry that was in the washer and finished getting dressed.18 Officer Bradley then advised Plaintiff that he was going to be handcuffed and that, if he cooperated, he would be handcuffed in the front. Plaintiff agreed to cooperate and he was cuffed with his hands in the front.19 They then exited the residence and walked out to Officer Lebo's vehicle with Lebo walking around to the driver's side of the truck to get in.20 Officer Bradley then opened the passenger side door and Plainitff started resisting and said he wasn't going along with them. Plaintiff grabbed hold of the truck and hung on.21 Officer Bradley tried to get him loose, and, in the process, they fell to the ground. By that time, Defendant Lebo had come over and they struggled on the ground a little bit. 22 Plaintiff would not cooperate with the officers and resisted their efforts to switch the handcuffs from the front to the back. In the process of switching the handcuffs from the front to the back, as a result of Plaintiff's resistance, Officer Bradley received a cut across his arm from the handcuffs.23 Once 18/d. 19 Officer Bradley's Deposition, page 6. 20 [d. 21/d. 22 [d. 23/d. 10 ~ p the officers got the Plaintiff cuffed with his hands behind his back, they stood him up and put him in the truck and left for the booking center.24 Based on the only version of the facts of record, Chief Lebo did not use unreasonable force either in overcoming the Plaintiff's resistance or in effectuating the Plaintiff's arrest. Conclusion Pennsylvania Rule of Civil Procedure 1035.3(d) provides the court with the authority to grant summary judgment when a party does not file an answer to a motion for summary judgment. In addition, the record in this case does not support the propositions essential to Plaintiff's claim against Defendant Lebo that the arrest was unlawful or that the force employed was unreasonable. As a result, Defendant Lebo's Motion for Summary Judgment will be granted. 24 [d. 11