Patrick v. Moorman

855 F. Supp. 2d 392, 2012 U.S. Dist. LEXIS 40239, 2012 WL 995450
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 23, 2012
DocketCivil Action No. 11-1908
StatusPublished
Cited by4 cases

This text of 855 F. Supp. 2d 392 (Patrick v. Moorman) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patrick v. Moorman, 855 F. Supp. 2d 392, 2012 U.S. Dist. LEXIS 40239, 2012 WL 995450 (E.D. Pa. 2012).

Opinion

MEMORANDUM

DALZELL, District Judge.

Plaintiff Dustin Alphanso Patrick (“Patrick”) sues defendant Deputy Sheriff Michael Moorman (“Moorman”), asserting a single claim under 42 U.S.C. § 1983 of excessive force in violation of the Fourth Amendment. Patrick’s suit arises out of an incident in which he robbed a bank and then fled from the scene and attempted to elude pursuing police officers. During Patrick’s flight, Moorman shot Patrick with his Taser, causing Patrick to fall to the ground and sustain serious injuries.

Moorman has filed a motion for summary judgment in which he argues that (1) his actions constituted a reasonable use of [394]*394force that did not violate the Fourth Amendment, and (2) he is entitled to qualified immunity. Patrick responded to this motion and Moorman replied, so the motion is now ripe for disposition. For the reasons we discuss below, we will grant Moorman’s motion for summary judgment on qualified immunity grounds.

I. Factual Background

Under Fed.R.Civ.P. 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” where “[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record.” Bello v. Romeo, 424 Fed.Appx. 130, 133 (3d Cir.2011). We will thus set out the undisputed material facts in this matter, as well as the disputed material factual assertions that the parties have supported with specific citations to the record.

A. Patrick’s Crime, Flight, and Apprehension

On May 8, 2009, at about ten in the morning, Patrick robbed the Wyomissing branch of VIST Bank using á demand note. Patrick ultimately pled guilty to this crime. Def.’s Stmt, of Facts (“Def.’s Stmt.”) ¶¶ 1, 3; Pl.’s Resp. to Def.’s Stmt. (“PL’s Resp.”) ¶¶ 1, 3. Patrick had smoked crack cocaine immediately before robbing the bank, and in the twenty-four hours preceding this crime he consumed heroin every six hours, cocaine every thirty minutes, and methadone. Def.’s Stmt. ¶ 2; PL’s Resp. ¶ 2. Following the crime, bank employees told law enforcement that Patrick did not display a weapon but merely handed over a note, PL’s Stmt, of Facts (“PL’s Stmt.”) ¶ 3; Def.’s Resp. to PL’s Stmt. (“Def.’s Resp.”) ¶ 3, although the parties disagree as to whether this information was communicated to all responding officers. PL’s Stmt. ¶ 4; Def.’s Resp. ¶ 4. Between eighteen and thirty officers from several jurisdictions responded to search for Patrick, and the parties agree that these officers heard over the radio that many officers were involved in the search. PL’s Stmt. ¶¶ 8, 12; Def.’s Resp. ¶¶ 8,12.

At the time Patrick robbed the bank, Moorman, a police officer in Berks County, was in a marked patrol car in Reading, Pennsylvania, along with another officer, Keith Neiswender (“Neiswender”). Def.’s Stmt. ¶ 29; PL’s Resp. ¶29. Moorman and Neiswender heard over their patrol car radio that VIST Bank had just been robbed, and that the suspect was a white male with a gray sweatshirt and a large tattoo on his neck who was traveling in a residential Wyomissing neighborhood known as Colony Park. Defi’s Stmt. ¶ 35; PL’s Resp. ¶ 35. The deputies decided to head to Wyomissing to assist with the search. Def.’s Stmt. ¶ 36; PL’s Resp. ¶ 36. While en route there, Moorman and Neiswender heard further calls over the radio stating that (1) the suspect had gone through a Subway sandwich shop in a shopping center, (2) a suspicious male had been seen lurking around cars, and (3) students at Berks Technical Institute (“BTI”) had seen a person matching the suspect’s description. Def.’s Stmt. ¶¶ 37-38; PL’s Resp. ¶¶ 37-38. The parties also agree that other officers radioed that: 1 (1) VIST Bank employees had followed Patrick as he left the bank, PL’s Stmt. ¶¶ 25-26; Def.’s Resp. ¶¶ 25-26; (2) an employee of a flower shop confronted Patrick outside the shop and “spooked” him off, PL’s Stmt. ¶ 31; Def.’s Resp. ¶ 31; and (3) Patrick

[395]*395walked by the BTI class without behaving aggressively. Pl.’s Stmt. ¶ 33; Def.’s Resp. ¶ 33.

Moorman decided to head toward BTI. Upon arriving in Wyomissing, the deputies slowly patrolled an office complex where a nurse from Berks Eye Center flagged them down, asked them if they were looking for a male wearing a gray sweatshirt, and advised them that she had seen the suspect run up a hill into a dumpster area in the Berkshire Commons parking lot. Def.’s Stmt. ¶¶ 38-43; PL’s Resp. ¶¶ 38-43. Moorman parked the patrol car, Neiswender transmitted the information from the nurse over the radio, and the deputies left the car to look for the suspect. Def.’s Stmt. ¶¶ 43-44; Pl.’s Resp. ¶¶ 43^4. Around this time, two Wyomissing police officers arrived at the parking lot,2 Barry Moyer (“Moyer”) and an officer who has remained unidentified. Def.’s Stmt. ¶ 46; Pl.’s Resp. ¶ 46.

Moyer spoke to Moorman and Neiswender. Moyer then went up the hill to check the dumpsters in that parking lot, while Moorman went up the hill in the direction of the Berkshire Commons parking lot and Neiswender went up the hill to the right behind several buildings. Def.’s Stmt. ¶¶ 45, 47; PL’s Resp. ¶¶ 45, 47. Moorman first searched one set of dumpsters in the back corner of the parking lot, then crossed a strip of grass into the lot towards a second set of dumpsters. Def.’s Stmt. ¶¶ 50-51; PL’s Resp. ¶¶ 50-51. While approaching these dumpsters, Moor-man encountered an elderly couple who had just left a doctor’s office. They told Moorman they had seen nothing, and Moorman made sure they got into their car safely before continuing toward the second set of dumpsters. Def.’s Stmt. ¶ 51; PL’s Resp. ¶ 51.

Moorman first made contact with Patrick near this second set of dumpsters. As Moorman searched the left side of the dumpsters, Patrick emerged from the right side. Def.’s Stmt. ¶¶ 53-54; PL’s Resp. ¶¶ 53-54. About six to eight feet separated Moorman and Patrick. Def.’s Stmt. ¶ 15; PL’s Resp. ¶ 15. Moorman recognized Patrick as the suspect from the tattoo on the right side of his neck, which measures four inches by three inches. Def.’s Stmt. ¶¶ 55-56; PL’s Resp. ¶¶ 55-56. Moorman did not see a weapon on Patrick, Def.’s Stmt. ¶ 58; PL’s Stmt. ¶ 58, but Patrick’s shirt was not tucked into his pants, Def.’s Stmt. ¶ 58(b); PL’s Stmt. ¶ 58(b). Moorman described Patrick’s clothes as “baggy” and stated that he could not see Patrick’s waistband.3 Def.’s Stmt. ¶ 59(a), (c) (citing Ex. C to Def.’s Stmt, at 199). Patrick cites testimony from Moorman and Neiswender suggesting that they heard no broadcast over the radio suggesting that he was armed, PL’s Resp. ¶ 142(a), (c) (citing Ex. R to Ex. A to PL’s Mem. at 260; Ex. J to PL’s Mem. at 26). The parties agree, however, that no witness in this matter testified that he heard a radio broadcast advising that Patrick was not armed. Def.’s Stmt. ¶ 143; PL’s Stmt. ¶ 143. Moorman is five feet ten inches tall and weighed 190 pounds at the time, while Patrick is six feet three inches [396]*396tall and weighed 280 pounds. Def.’s Stmt. ¶¶ 61-62; Pl.’s Resp. ¶¶ 61-62. Moorman was carrying a firearm, a baton, and mace, PL’s Stmt. ¶ 54; Def.’s Resp.

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Cite This Page — Counsel Stack

Bluebook (online)
855 F. Supp. 2d 392, 2012 U.S. Dist. LEXIS 40239, 2012 WL 995450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-v-moorman-paed-2012.