Citations
- 792 F. Supp. 2d 745
Full opinion text
ORDER
LAWRENCE F. STENGEL, District Judge.
AND NOW, this 20th day of May, 2011, upon careful and independent consideration of the defendants’ motion for summary judgment (Doc. # 17), and all responses and replies thereto, and after review of the thorough and well-reasoned Report and Recommendation of United States Magistrate Judge Thomas M. Blewitt (Doc. #26), it is hereby ORDERED that:
1. The defendants’ objections to the report and recommendation of the United States Magistrate Judge (Doc. # 31) are OVERRULED;
2. The Report and Recommendation is APPROVED and ADOPTED;
3. Defendants’ motion for summary judgment is GRANTED.
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, United States Magistrate Judge.
I. Background.
On August 14, 2009, Plaintiff, Thomas M. Fisher, a resident at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania, filed, through counsel, the instant civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff properly filed his action in the United States District Court for the Middle District of Pennsylvania since his claims took place in the Middle District of Pennsylvania, i.e. York County, Pennsylvania, and Plaintiff as well as both named Defendants were located in the Middle District of Pennsylvania. Plaintiff paid the filing fee.
This Court has jurisdiction over Plaintiffs action under 28 U.S.C. § 1331 and § 1343. See McNeil v. City of Easton, 694 F.Supp.2d 375, 382 (E.D.Pa.2010).
Plaintiff named the following two (2) Defendants: Police Officer Michael Matthews; and Police Officer Shaun Dickmyer. Defendants Matthews and Dickmyer were employed by the Southwestern Regional Police Department.
Plaintiff avers that on August 17, 2007, Defendants Police Officers Dickmyer and Matthews violated his civil rights when they arrested him on his property. In particular, Plaintiff alleges that Defendants arrested him without probable cause and that they used excessive force on him in violation of his Fourth Amendment rights. Plaintiff also alleges that his First Amendment free speech right was violated when Defendant Matthews retaliated against him when he called Matthews a “dirty cop” and Matthews stuck his finger in his face and told him he was under arrest. Further, Plaintiff raises a malicious prosecution claim against Defendants. (Doc. 1).
After they were served with the Summons and Plaintiffs Complaint, Defendants jointly filed an Answer to the Complaint with Affirmative Defenses on October 19, 2009. (Doc. 7). Discovery was then conducted.
On September 10, 2010, Defendants filed a Motion for Summary Judgment pursuant to Fed.R.Civ. P. 56. (Doc. 17). Defendants simultaneously filed their support brief, a Statement of Material Facts (“SMF”), and an Appendix of Exhibits. (Docs. 18, 19 and 20). On September 24, 2010, Plaintiff filed his response to Defendants’ SMF with Exhibits and his opposition brief. (Docs 21, 21-2 and 22).
On September 27, 2010, the Court referred Defendants’ Summary Judgment Motion to the undersigned for a R & R. (Doc. 23).
Defendants filed their reply brief on October 8, 2010. (Doc. 24).
Thus, Defendants’ Summary Judgment Motion is ripe for disposition. In accordance with the Court’s Order, we issue this R & R.
II. Statement of Material Facts.
As stated, Defendants filed their SMF and Plaintiff filed his response to it (Docs. 19 and 21, respectively), as required by Local Rule 56.1, M.D. Pa. Further, as stated, Defendants and Plaintiff submitted exhibits. (Docs. 20 and 21-2). Defendants reference the record to support the facts stated in their SMF and Plaintiff references the record to support his responses to Defendants’ SMF as required by Local Rule 56. 1. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08-2278, M.D. Pa.; Michtavai v. Martinez, 2009 WL 5172962 (M.D.Pa.); Hemingway v. Ellers, 2008 WL 3540526 (M.D.Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D.Pa.), affirmed 369 Fed.Appx. 408 (3d Cir.2010).
The following facts stated in Defendants’ SMF (Doc. 19) are admitted by Plaintiff (Doc. 21):
1. Defendant Shaun Dickmyer is a police officer with the Southwestern Regional Police Department. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
2. Defendant Michael Matthews is a police officer with the Southwestern Regional Police Department. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
3. Officers Dickmyer and Matthews were police officers with the Southwestern Regional Police Department on August 17, 2007. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
4. It is admitted that Plaintiff resides at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania.
5. It is admitted that Plaintiff had an automobile repair shop listed at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania.
6. On August 17, 2007, William Lucas and Eugene Rossi, employees of Penn Line Tree Service, went to Plaintiffs property. Lucas and Rossi were trying to determine how long it would take to trim trees near electric lines and to mark it on a map for their employer Pine Line Service. Lucas and Rossi drove on a dirt lane adjacent to Plaintiffs property to look at the lines and they “probably” drove past where Adam Electric Company’s (“AEC”) easement went to get a side view and a better angle of another line.
Lucas and Rossi were not employees of AEC and they entered Plaintiffs property on August 17, 2007, without Plaintiffs permission and without permission of AEC.
7. Michael Ward, line superintendent for AEC, testified that AEC was a co-op and that AEC had a right of way easement for the 1842 Hoke Road property owned by Plaintiff. Ward also testified:
Q. Do you believe that the Penn Line employees [Lucas and Rossi] as you’re sitting here today had a right to be there pursuant to the easement or the language in the application?
A. [Mr. Ward] Yes.
Q. And why do you feel that?
A. Because of the signed membership it entitles the cooperative and states in here and agents — under the applicant’s property at all times for such purposes including without limitations such cutting and trimming of trees and shrubbery. But knowing, knowing that the situation that happened Tom’s [Fishers] property earlier where he, the Asplundh crews had went in to get the adjacent trees on the other property we knew that we needed to do, to cut, you know call Tom ahead and Ned knew it. And like I said if anything had to be done with my own acres I gave the (sic) Tom the courtesy that I would call him and let him know we’d be in there.
Q. Did the two Penn Line employees know that to the best of your knowledge?
A. No.
Q. Did the officers now that before they arrested Mr. Fisher to the best of your knowledge?
A. No.
ATTORNEY BAILEY:
Objection, but you can respond. It’s okay.
ATTORNEY DADAMO:
No they didn’t know to the best of your knowledge that you were supposed to call Mr. Fisher first.
MR. WARD: No.
(Doc. 20, Ex. C, NT 71-72).
Ward also stated that AEC did not know Rossi and Lucas were going to Plaintiffs property on August 17, 2007, to look at the trees around the service line to Plaintiffs property to form a bid, and that Lucas and Rossi were not agents or employees of AEC. (Doc. 21-2, Ex. B, NT 54, 87-88).
Rossi testified at Plaintiffs October 22, 2007 preliminary hearing as follows:
Now, in terms of why you were on the property, you were there to visually inspect the work that would have been performed?
A. [Mr. Rossi] Well, we were bidding on work, yes.
Q. So you were actually in the process of gathering information to make a bid to Adams Electric?
A. That’s correct.
Q. You didn’t have the job at that point, did you?
A No.
Q. Had either you or Mr. Lucas been to this property before?
A. No.
Q. Do you know if your company ever—
A. I don’t know if Penn Line ever had any work on that property or not. But when we do bids, we have to go out and look at the line so we can bid on them. Q. Did anyone from Adams — when you went to this property, did you have any instructions with you—
A. No.
Q. —about contacting the Fishers?
A. No.
Q. You heard me ask the questions before to Mr. Lucas—
A. Right.
Q. —about any agreements with Adams Electric?
A. Right.
Q. You didn’t know anything about that?
A. Right, we didn’t know anything about that.
Q. Okay. You had a map with you when you got to the property?
A. We had a map of the whole circuit that we were supposed to bid.
Q. So you knew where the easement was, where the right-of-way was?
A. Each pole has its own number.
Q. And where you drove to on the Fisher property, you went — it would be fair to say that you drove past where the right-of-way was. Correct?
A. Well, there is a garage and then a house. The line came across, so we went down the driveway where the line came across and came back out.
Q. But you exceeded where the line was. Correct?
A. Well, probably.
Q. Probably.
A. Like I said—
Q. Just listen to my question. You went past where the easement was. Correct?
A. As far as I know. I am not 100 percent sure of it. Like I said, we had to go down the driveway to look at the line.
(Doc. 21-2, Ex. A, pp. 28-29).
Mr. Lucas testified at Plaintiffs October 22, 2007 preliminary hearing as follows:
Q. You were beyond the easement that Adams Electric has. Correct?
A. [Mr. Lucas] Well, whatever it is, yes.
Q. So it was beyond that?
A. The line was back there.
Q. I am not asking where the line was. Where you drove is beyond where the easement was?
A. It’s possible. I wouldn’t argue that point.
Q. And why did you go all the way back onto the property here to turn around?
A. To get a side view of the other line that shot up the side of his fence or his neighbor’s.
Q. All right.
A. To get a better angle to look at it.
Q. Okay. Now, when Mr. Rossi was with you, who did Mr. Rossi work for?
A. Mr. Rossi, Penn Line Service, the same as I do.
Q. Okay. Did Mr. Rossi tell you anything about an agreement that Adams Electric had with the Fishers about notifying them prior to coming onto the property?
A. No.
Q. Did it appear to you that Mr. Rossi knew about this agreement with Adams Electric that somebody would contact the Fishers before coming onto the property?
A. I don’t know.
Q. There was no discussion of that agreement that day at all?
A. Not that day.
(Doc. 21-2, Ex. A, pp. 9-10).
8.The AEC Application for Membership Plaintiff signed provided, in part, as follows:
7. The Applicant hereby grants unto the Cooperative an easement for the inspection, construction, operation, repair, maintenance, relocation, and removal of electric distribution lines, meters, or other facilities to serve the Applicant’s premises. It is agreed that said easement shall include the right to attach, maintain, and remove communication wires and cables upon said electric poles in the event such service or services are made available by or through the Cooperative. The easement is agreed to include the right of Cooperative employees and agents to enter the Applicant’s property at all times for such purposes, including, without limitation, such cutting and trimming of trees and shrubbery and/or control of their growth by reasonable means to the extent that such action is necessary to protect and keep the electric service line, clear of such growth. This right-of-way easement is in addition to any other right-of-way easement which may be executed by the owner of the premises.
(Doc. 20, Ex. E, ¶ 7.).
Mr. Ward testified at his deposition as follows:
Q. Can you explain what the, the two Penn Line employees were doing on Mr. Fisher’s property that day?
A. [Mr. Ward] Well, we have what we call contract work. And it’s a two-year contract and we have different right of way companies come in and bid those contracts and no matter what substation it is, that depends on what district it’s out of. While there was two additional bidders that they had brought in that year, which was Penn Lines and David Tree Service to look at these lines out of those substations that were coming up under contract for the next two years budget and that’s what they were doing out looking at that so they could get a cost estimate to turn in.
Q. For a two-year contract.
A. Umhmm
Q. After the current contract expires.
A. Yeah.
Q. And you didn’t know that they [Lucas and Rossi] were gonna be there that day.
A. Correct.
(Doc. 21-1, Ex. B, NT 53-54).
9. Plaintiff testified at his deposition that the vehicle Rossi and Lucas drove on August 17, 2007, had a very small sign on the side which said PennLine Service. (Doc. 20, Ex. A, NT 64). Plaintiff also stated that he did not become aware of the sign until after Defendant Officer Dickmyer showed up at the scene. (Doc. 21-2, Ex. C, NT 76). The vehicle Lucas and Rossi were in was Rossi’s personal new vehicle. (Doc. 21-1, Ex. A, NT 25).
10.-14. Mr. Lucas testified at Plaintiffs October 22, 2007 preliminary hearing that the encounter with Plaintiff occurred as follows:
Q. Okay, Mr. Lucas. If you could just tell the Court what happened on the date of August 17, 2007, around 1020 hours.
A. Well, we drove in Mr. Fisher’s driveway to look at the trees to see how long it would take us to trim them for Adams Co-op.
We went down, turned around the driveway, came back out. He [Plaintiff] came running out in front of the car with his hands out, started cursing, get the F out of the car and give me the F’ing keys.
I just put the car in park, opened the door and got out like he [Plaintiff] said, come over. He motioned me to the side. He shut the keys off and took the keys out the car. We just couldn’t talk to him anyhow.
Q. Anything else happen after that?
A. Well, we waited — he [Plaintiff] said he was going to call the cops. He did. We waited. We couldn’t go nowhere because the had the keys in his pocket. We waited for you [Officer Dickmyer] until you came.
(Doc. 20, Ex. B, NT 3-4).
Mr. Lucas also testified at Plaintiffs October 22, 2007 preliminary hearing as follows:
Q. Did Mr. Fisher say anything else to you?
A. [Mr. Lucas] No. I just did what he [Plaintiff] told me, got out of the car, left it run, put it in park, put the park brake on, opened the door and got out. I didn’t do anything. I just did what he told me.
Q. What were your feelings at that time?
A. Well, not too good. He [Plaintiff] cursed me, which — you know what I mean? We just couldn’t talk to the gentleman. That’s all. We tried to talk to him, but we couldn’t. It didn’t do any good no matter what we said.
Q. Were you afraid of your safety at that point?
ATTY. PASKEY: Objection. Relevance.
THE WITNESS: Yeah.
ATTY. PASKEY: It is not an element of the crime.
THE WITNESS: I was scared.
(Dc. 20, Ex. B, NT 4-5).
Mr. Lucas further testified at Plaintiffs October 22, 2007 preliminary hearing as follows:
Q. So you [Lucas] and Mr. Rossi were in the car. You drive back onto the Fishers’ property. And when Mr. Fisher came out, which building did he exit? Was it a house or was it a shop?
A. I don’t know. He just came out over the grass there and put his hands out in front of the car. I don’t know which building he came out of. I didn’t see that point.
Q. When he came back towards the car and had his hands out as you indicated off to the side of your body, had you already turned the car around to go back out?
A. Yeah, we were heading back out.
Q. Okay. And Mr. Fisher comes up to the car. Did you stop the car or did you continue to drive past?
A. I stopped it immediately.
Q. Why did you stop it?
A. Because he had his hands up and cursing me in front of the car (Indicating).
Q. And it appeared that Mr. Fisher was upset at that point?
A. I guess, yeah.
Q. Because you were on his property. Correct?
A. (Nods head).
Q. Is that a yes?
A. Yeah, we were. Yeah.
Q. And it would appear that he had no idea who you were. Correct?
A. Correct.
Q. So all Mr. Fisher knew is that a car with two strangers was turning back around on his property. Correct?
A. That’s correct. There is identification on the car, Penn Line Service.
Q. I am talking about before he got up to the car. You will agree with me that all he saw was a strange car with two individuals turning around on his property. Correct?
A. Correct.
Q. And Mr. Fisher goes up to the car and you said he was upset. And you indicated that he told you to get out of the car?
A. Cursing me out of the car.
Q. Okay. Was he standing in front of the car or to the side of the car?
A. Front of the car with his hands on it (Indicating).
Q. And you got out of the car. Correct?
A. (Nods head).
Q. What did Mr. Rossi do?
A. We tried to talk to him.
Q. Meaning did Mr. Rossi stay in the car or did he get out of the car?
A. He was in the car, yeah.
Q. Did Mr. Rossi stay in the car while you got out?
A. We both got out, yeah.
Q. Okay. And you said when you got out of the car you put the car in park?
A. Yeah, and put the brake on so I wouldn’t run over him [Plaintiff] (Indicating).
Q. And kept the keys in the ignition?
A. Yeah, left it running.
Q. Who got the keys out of the ignition?
A. Mr. Fisher pushed me to the side and turned the key off and put the keys in his pocket.
Q. Okay. And after Mr. Fisher put the keys in his pocket as you testified, you indicate that he said he was going to call the police?
A. Yeah.
Q. So he was telling you to wait until the police got there?
A. Well, we had to wait. He had the keys. Yeah.
Q. Okay. After Mr. Fisher as you testified put the keys in his pocket, where did he go?
A. Over to his garage.
Q. And after he went over this garage, what did you and Mr. Rossi do?
A. Mr. Rossi called Adams and his boss.
Q. So Mr. Fisher left your immediate vicinity. Correct?
A. Right.
Q. He went into a building. Correct? A. (Nods head).
Q. And you and Mr. Rossi are standing there. Correct?
A. (Nods head).
Q. Is that a yes?
A. Yeah, standing there or sat back in the car.
Q. You were able to move to sit back in the car. Correct?
A. Correct.
Q. And if you wanted to, both you and Mr. Rossi could have walked off that property without the ear and Mr. Fisher would have never seen you. Correct?
A. We could have walked off, yeah.
Q. Mr. Fisher did not physically restrain you at any time, did he? He didn’t place his hands upon you and restrain you?
A. Just to get the keys to the car.
Q. You said he pushed you out of the way. Correct?
A. Correct.
Q. I am talking about when he went back into this building, he wasn’t physically restraining you. Correct?
A. No, not then.
Q. And he wasn’t physically restraining Mr. Rossi. Correct?
A. Correct.
Q. And Mr. Rossi could have — while Mr. Fisher was in that building, could have walked off the property. Correct?
A. Correct. We could have walked off.
Q. You both could have walked off the property. Correct?
A. Yeah.
Q. And what was restrained was your vehicle. Correct?
A. Correct. Yes.
(Doe. 21-2, Ex. A, NT 11-15).
At his deposition, Plaintiff testified as follows about the incident with Lucas and Rossi:
Q. ... There were two gentlemen in the vehicle correct?
A. Yes
Q. Okay did they get out of the vehicle at that point?
A. Yes
Q. Did you then reach into the vehicle and take the keys out of the ignition? A. No
Q. Tell me what you did then?
A. Well
Q. After they got out.
A. Okay after they got out. After they got out I said to them what are you guys doing back there. And they said we’re here with Adams Electric to trim the trees. I said let me see your Adams Electric identification. They had none.
Q. Okay.
A. This is a time when there’s a bunch of robberies going on in the neighborhood. The police have been putting it in the paper if you see any suspicious activity call the police. They had no identification. They had a sticker on the side of the vehicle that would, you could’ve probably went to the what do you call it, the mall, and bought for three bucks or something.
Q. That’s the sticker identifying the company.
A. Well, yeah it was on the back of the vehicle.
Q. Okay back or side or was there more than one?
A. No I’m more. I’m not even sure where it was on the vehicle.
Q. Okay
A. Yeah
Q. That’s fine.
A. But like I said I, these guys the big guy and I have no idea which one he was. He was the passenger in the vehicle started to get verbally abusive with me. I did. I was. He was on my property. The guy that was driving and again I don’t know who, what his name was, but it was the man that was driving I said to him give me the keys. I said you guys are trespassing, I’m gonna call the police and have youn’s arrested for trespassing. He gave me the keys to the vehicle.
Q. He being the driver.
A. Would’ve been the driver. Would’ve been the smaller of the two men. Again, I don’t know which is which.
Q. So had the smaller guy taken the keys with him when he got out of the vehicle?
A. No he got out. He gave 'em. He got in the vehicle and gave me the keys.
Q. Was the vehicle still running prior to that time?
A. I honestly can’t answer that.
Q. Were the keys still in the ignition prior to that time?
A. Yes.
Q. Okay did you in any way push either of these gentlemen or make any physical contact with them?
A. Never touched them.
Q. Why did you want the keys?
A. I didn’t want ‘em driving off. There’s too many unanswered questions. Q. Okay so was it your intent to keep them on the property until you could get the police to come there?
A. My intention was to clarify who they were and why they were on my property.
Q. Okay but in taking the keys was it your intent to keep them on the property until the police go there to respond to these questions or inquiries?
A. No.
ATTORNEY BAILEY:
Objection objection please, objection asked and answered. You may respond again.
ATTORNEY LAVERY:
Go ahead.
MR. FISHER: I had no intentions of keeping the gentlemen on the property. I wanted the vehicle. The two gentlemen could’ve walked off the property at any given time. I never restrained the two individuals.
Q. So it wasn’t your intention in taking the keys to keep the two individuals there, you just wanted to keep the vehicle there.
ATTORNEY BAILEY: Objection, asked ...
ATTORNEY LAVERY: Is that what
ATTORNEY BAILEY:
Objection, asked and answered. You may respond again.
ATTORNEY LAVERY:
Let me just get the question out Don so it’s on the record?
ATTORNEY BAILEY: I think well, all right go ahead Frank. It was out, but go on. It’s all right. It’s all right.
MR. FISHER: I wanted the vehicle on my property.
ATTORNEY LAVERY:
Okay, did you tell the two gentlemen that they could leave, but you wanted the vehicle there?
MR. FISHER: No I told ‘em I was gonna cal the police and have ‘em arrested for trespassing.
Q. Did either of the two individuals attempt to explain to you why they were on the property?
A. It’s possible they could have, but again, the larger gentleman, the passenger, he was becoming verbally abusive with me and I wasn’t really interested in standing there and trying to reason with two men that I had no reason, no explanation from them why they ere on my property that they could verify.
Q. Hadn’t they at that point before explained to you that they were there about trimming the trees?
A. Yes.
(Doc. 21-2, Ex. C, NT 77-83).
Regarding whether Lucas and Rossi could leave Plaintiffs property, Lucas testified at Plaintiffs October 22, 2007 preliminary hearing as follows:
Q. If you [Lucas] thought your liberty and your freedom was restrained because Mr. Fisher took you keys, why didn’t you ask Mr. Rossi for the phone to call the police if you thought you were being held captive?
A. He called the police. I just—
Q. Who called the police?
A. Mr. Fisher.
Q. If you felt that you weren’t free to leave and you were being held—
A. I didn’t want to leave. I just wanted to straighten out the problem.
Q. You didn’t want to leave?
A. Right.
Q. But you realize you could have left if you wanted?
A. Yeah.
Q. And you agree with me that you didn’t call the police, did you?
A. I didn’t call the police.
Q. And Mr. Rossi didn’t call the police?
A. No.
Q. And did you ask the police to file charges against Mr. Fisher?
A. Did I? No.
Q. Did you hear Mr. Rossi ask the police to file charges against Mr. Fisher?
A. No.
Q. You were just told the charges were going to be filed. Correct?
A. (Nods head).
Q. Is that a yes?
A. Yes.
(Doc. 21-2, Ex. A, NT 17-19).
15. As quoted above, Mr. Lucas testified at Plaintiffs October 22, 2007 preliminary hearing that he “was scared” after Plaintiff pushed him to the side, turn the car off and took the keys and put them in his pocket. (Doc. 20, Ex. B, NT 4-5 and Doc. 21-2, Ex. A, NT 13).
16. Plaintiff testified at his deposition as to why he took the keys to the car Lucas and Rossi were in as follows:
Q. Why did you want the keys?
A. I don’t want them driving off. There was too many unanswered questions.
Q. So was it your intent to keep them on the property until you could get the police to come there?
A. My — my intentions was to clarify who they were and why they were on my property.
Q. Okay. But in taking the keys, was it your intent to keep them on the property until the police got there to respond to these questions or inquiries?
MR. BAILEY: Objection.
A. No. The—
MR. BAILEY: Objection. Objection, please. Objection. Asked and answered. You may respond again.
BY MR. LAVERY:
Q. Go ahead.
A. I had no intentions of keeping the gentlemen on the property. I wanted the vehicle.
(Doc. 20, Ex. A, NT 67).
17. Lucas and/or Rossi explained to Plaintiff that they were on the property on behalf of Adams Electric Cooperative. (Exhibit A, 65:8-9)
18. Mike Ward is and was the Line Superintendent for Adams Electric Cooperative. (Exhibit C, 10:7-8)
19.-20. Mr. Ward testified at his deposition as to what happened when he went to Plaintiffs property as follows:
A. I had gotten a call from our dispatcher and I was in the southern end of York County that there was, there was some guys that was bidding the right of way contract had, was on the property and Mr. Fisher had taken his keys, if I could go down and see what was going on.
Q. Okay and did you proceed up to Tom Fisher’s place?
A. Yes yep.
Q. Now in your own words as best you can recollect, I’m gonna try and not to interrupt you with any questions, okay just from when you arrived until you left could you share with us what you remember seeing?
A. Well when I first pulled up I had noticed the pick-up truck with the, the two employees from the Penn Lines Tree Service that was down in the right of way. And so Id rove down there first and asked the guys what was going on and they aid that Tom had come out and he was upset and had taken their keys. And I think they mentioned that he was gonna go call the police officers. And I said I know Tom. I said let me go up and talk to him and see what’s going on. So I drove back up the lane and back around to in front of his garage. And I probably parked I don’t know maybe thirty, forty feet away from the two bay garage. And I had walked in the garage and saw Tom and I said hey Tom what’s goin on. And then as soon as Tom started speaking I could tell he was, he was upset and about the guys being down there in the right of way. And he said well the police are on then-way, they were trespassing and we’ll wait to they got there. So we waited till they got there. They got there maybe five minutes later and when they showed up they, well I introduced myself. And they asked me to step outside and go back to the vehicle.
Q. To your vehicle.
A. Umhmm
Q. Okay
(Doc. 20, Ex. C, NT 22-24).
21. Officer Diekmyer initially spoke with Plaintiff when he arrived on the scene and Plaintiff was visibly upset and he was yelling. (Exhibit F-Dickmyer deposition, 13:7-8)
22. Officer Diekmyer noticed a rifle close to Plaintiff when they were speaking. (Exhibit F, 13:11-13)
23. Officer Diekmyer then went to the PennLine employees, Lucas and Rossi who were sitting in their vehicle, to make contact with them about the situation. (Exhibit F, 13:17-21)
Also, with respect to Plaintiffs rifle, Plaintiff testified as follows:
Q. There’s an indication in the police report that there was a rifle in the shop at that point.
A. Yes
Q. Was there?
A. Yes
Q. Okay and was it loaded?
A. No, the clip was in the locked cash drawer. I would never leave a loaded rifle sit around the shop.
Q. Okay what kind of rifle was it?
A. A.22
Q. Did you have any discussion with Officer Diekmyer about the rifle?
A. He’s, he never brought it up.
Q. Okay.
A. Twice he [Officer Diekmyer] was standing within twenty feet of that gun and if he felt uncomfortable with the gun he could’ve asked me to lock it away or he could’ve put it in his cruiser.
(Doc. 21-2, NT 93-94).
24.-27. Defendant Officer Diekmyer testified at his deposition as to what happened when he arrived at Plaintiffs property as follows:
A. I arrived on scene, Mr. Fisher was the Complainant, I walked over to Mr. Fisher to investigate the situation; at that point I knew Mr. Fisher was upset by his demeanor and actions, he was, he was yelling and he was concerned about the two, two Pennline employees that were on his property. And, at that point, I also noticed a rifle next to him in the garage. On speaking with him, I was, I was a bit concerned because Mr. Fisher was upset so I decided, Mr. Fisher told me about the situation and I wanted to go make contact with the actual Pennline employees that were on the property made, I walked over, made contact with them, they were still in their vehicle, I knew at that point that Mr. Fisher had the keys. They appeared to be very upset and, and nervous and the driver at least appeared to me to be very scared. They had explained to me that Mr. Fisher, I asked again, they were down on the property at the right-of-way and I asked them what had happened, and they said Mr. Fisher jumped out in front of us, waving his harms, forcing them to stop the vehicle. The driver attempted to get out of the vehicle to see what the issue was, and from what was told to me that Mr. Fisher pushed him aside and grabbed the keys out of the ignition. And, I’d be speaking to them further and then walked back over to Fisher to get some more information. I spoke to Mr. Fisher to try to compromise, to get some compromise, if they could work out the issues, so I had the two gentlemen, they were on the truck, come over, and to see if Mr. Fisher and the two gentlemen can sort out their differences.
Q. Their ride, was it a truck?
A. It was a truck.
Q. Pickup truck?
A. Yes.
Q. When, when did Ward come?
A. Ward came to the scene after Mr. Fisher was taken into custody.
Q. The two gentlemen that were in the truck, was it, was the truck, describe it fer us, did it have any insignia on nit or anything like, that?
A. From what I can recall, I believe it. had the, the Pennline logo on the truck. Don’t know if it was on the door or on a, on the side of the truck.
Q. What is, what is Pennline, what do you mean, Pennline. Now you’re a cooperative down there as Adams Electric, right?
A. Right.
Q. Okay. What is Pennline, is it a transmission company or something, what is it?
A. Pennline is a separate subcontracting firm to Adams Electric.
Q. Okay. You say this, this truck was marked and it had an insignia on it, as best you can recollect?
A. That I can remember, yes.
Q. Do you remember what color it was, the vehicle?
A. I, I don’t, I believe it may have been red, but that’s as much as I can remember.
Q. Okay, how are the guys dressed?
A. I don’t I don’t recall ...
Q. Did they have work clothes on, or like, like a khaki uniform type of thing
A. Yes.
Q. ... work uniform, okay. Boots?
A. I don’t recall what, what footwear.
Q. Hard hats?
A. No.
Q. Did they represent to you that they worked for Adams Electric?
A. They had stated to me that they were on a bid with, with Adams Electric.
Q. Did they, and I asked Michael [Ward] some of these same questions. Did they indicate to you that they were there with the authority or knowledge, rather, perhaps, the knowledge of Adams Electric?
A. Yes.
Q. They expressly indicated that to you?
A. They stated, they stated that they were down there for Adams Electric to check on the right-of-way with the trees.
Q. To do a bid.
A. Right.
(Doc. 20, Ex. F, NT 13-17).
Further, Mr. Rossi testified at Plaintiffs preliminary hearing as follows:
Q. When you and Mr. Lucas first arrived on the property, did you notify anyone on t he Fisher property that you were there?
A. No. No.
Q. Did you tell anybody why you were there?
A. No.
Q. Did you know, Mr. Rossi, whether the trees that you were looking at to bid the job, do you know whether they were o Mr. Fisher’s property or not?
A. Some of them were, yes.
Q. But some of them weren’t?
A. I didn’t know if it was Mr. Fisher’s property, if that’s what you are asking me.
Q. Did you know it was Mr. Fisher’s property?
A. No. We look at 990 miles of line. I can’t—
(Doc. 21-2, Ex. A, NT 30-31).
28.-29. Defendant Officer Dickmyer testified at his deposition that he tried to resolve the situation:
Q. Okay. You went back up and talked to Mr. Fisher. Did Mr. Fisher and all of this by the way is prior to when Michael [Ward] arrives, right?
A. Yes.
Q. What, did Mr. Fisher indicate that he had a, he wanted the people arrested or that he wanted you to do something, or what did he, what did he pose as a solution or what did he respond to you with, what occurred during that conversation?
A. He wanted the people charged for trespassing on his, on his land.
Q. Okay. Did you decline?
A. I didn’t have all the information on hand and at that pont I was still investigating it.
Q. Okay. What happened next?
A. After I, afer learning, you know, why the Pennline workers were there on his property, I then tried to resolve the situation and tried to get the keys back for the employees; we spoke actually behind his garage, looking toward where the vehicle would be sitting. We spoke about the situation, Mr. Fisher didn’t, didn’t want to reason at all with the employees and wouldn’t give the keys back and, and it continued to be, he acted very hostile with the employees and yelling profanities at the employees. Q. Do, did you call Mr. Ward?
A. Not at that time.
Q. Did you ever call Mr. Ward?
A. I didn’t call Mr. Ward, but I do know that the two employees had called their, Mr. Ward from Adams Electric to come down and see me.
Q. Do you know whether Mr. Fisher called Mr. Ward?
A. I don’t recall that.
Q. Do you remember when Mr. Ward arrived?
A. Mr. Ward arrived after we, after Mr. Fisher was inside my cruiser.
Q. Are you sure about that?
A. Mr. Ward, from what I can remember, arrived down I believe after Mr. Fisher was placed into custody, from what I can remember.
(Doc. 20, Ex. F, NT 19-21).
After the police arrived on the scene and asked Mr. Ward to go back to his vehicle, Ward testified at his deposition as to what happened next:
A. So I went back out and leaned up against the front of the company jeep. Q. What happened next?
A. Well, I was looking in and if I remember correctly the first bay I think Tom has a phone and a desk or something over there and the police officers had went in and I, their backs are to me.
Q. Right.
A. And I can see a little bit of Tom. I really can’t hear a whole lot what’s going on. I could, I could hear some swearing. And I might’ve went on out you know look back and you think it’s an eternity. I don’t know how long it went on, maybe a minute or two they were talking back and forth. And I saw the, I saw the officers take Tom down and handcuff him.
Q. All right let me ask you some at this juncture, let me ask you some individual questions?
A. Okay.
Q. Based upon what you observed did you see Tom swing at the officers, come at them; assault them or anything like that?
A. I couldn’t see anything because their backs was to me. And all and I was watching. And I, no I really couldn’t see anything cause Tom was in front of them and their backs were to me. r
Q. Right.
A. So if they were you know here and Tom’s here I couldn’t see.
Q. Did you hear them say anything to Tom about his being under arrest?
A. I didn’t really hear much of anything.
Q. Okay Michael do you have a recollection of and I, you may not have been able to see I understand that their backs were to you, but did you appreciate the fact that you didn’t hear much of anything? Did you hear any of them order Tom to turn around or to put his hands behind his back or I know you already answered you didn’t hear 'em tell him he was under arrest, but did you hear anything like that, that you can remember?
A. No cause I’m probably like fifty feet, forty to fifty feet away.
Q. Okay before the officers to use your words, took Tom down did you see any fisty-cuffs, fighting, any weapons drawn or anything like that?
A. No.
Q. Okay is it fair to say that you didn’t know which officer was which?
A. Correct yeah.
Q. In fact you don’t even know if it was these two officers right? You didn’t know who they were, is that correct?
A. No.
Q. Now you did indicate, I believe, just a few minutes ago that you heard some swearing.
A. Umhmm
Q. Do you know whether that was the officers? Do you know whether it was Tom? Do you now whether it was both? Think back on that? What do you remember about the swearing?
A. I don’t know where it was. I don’t know who was saying it.
Q. Okay do you remember what was said?
A. I heard the F word a couple times. That was about it.
Q. Okay now I wanna ask just a couple questions bout their location okay. Based upon your recollection, I’m referring to all three of the gentlemen now, Mr. Fisher and Mr. Dickmyer and Mr. Matthews, all three of those gentlemen were they inside, inside the building inside the bay? Were they at the bay or close to it entrance to the bay or were they outside of a little bit? Try to think back and tell us if you remember?
A. They were inside, inside the bay more than halfway, maybe little over halfway, halfway to two-thirds of the way.
Q. All right now I’m gonna change direction just a little bit. Did you see the police officers arrive?
A. Yes.
Q. Did they arrive together?
A. No.
Q. How long had the officer who arrived first been there when the second officer came?
A. A couple minutes maybe, several minutes.
Q. When the officer who came first arrived how, if you remember, did he drive up? How did he come in? How did he come in there? Did he speed up? Did he come up fast? Did he come up slow, normally?
A. Yeah it was average. I mean normal.
Q. Okay and I’m assuming that he after he got up there wherever he stopped his police vehicle he got out is that correct?
A. Umhmm
Q. Did he talk to the two gentlemen from the right of way first or did he talk to Tom first or to you first or greet the friendly local dog? What did he do?
A. I don’t recall of him talking to the two Penn Line employees. I think he just came right up and was talking. Came to the garage I think and was talking to Tom.
Q. Okay now, how did they appear to be conversing, just two people talking? Did you hear anything, overhear anything?
A. No cause at that time I had, he had asked me to step out. He had stepped me you know cause he came in first and he had asked me to step back over to the vehicle.
Q. Okay and did there appear to be thing, anything unusual or of a contentious you know difficult nature between Tom and that officer before the second officer came?
A. I don’t. I can’t honestly say if there, if there was. I know. I know like I said I know Tom was, was upset. I know the officer came in and I was back out at the vehicle. And I don’t know, I don’t know what was like I said I couldn’t hear. I don’t know what was going on.
Q. Again based on your recollection when the second officer arrived do you have a recollection of how he drove into the into Tom’s place?
A. I think he just came in. Cause they, they were both parked in behind me. I think he just came in. It was nothing out of the ordinary I don’t recall. I mean cause as far as spinning tires and stuff I think he just came in normally.
Q. Okay do you have a recollection of how he, what he did when he exited the vehicle, police vehicle?
A. No I don’t.
Q. Did he walk directly to where the other officer and Tom were?
A. Yes.
(Doc. 21-2, Ex. B, NT 25-31).
30.-33. Defendant Officer Dickmyer testified at his deposition that he did not intend on arresting anybody and that he called Officer Mathews for assistance:
Q.... anything else that happened though that you can recollect before Michael Matthews arrived?
A. [Defendant Dickmyer] Just that I was trying to resolve the situation. I responded to the scene, hot, you know, my whole attempt was to not arrest 'anybody at the scene, I wanted to resolve it, I noticed that I couldn’t get the situation under control and that’s when I called for Officer Matthews down.
Q. Now, what did you say when you asked for Officer Matthews, simply that you needed support or needed help or what, did you give any reasons?
A. I, I just remember radioing Officer Matthews if he could respond down for assistance.
Q. And he did?
A. Yes.
Q. Do you remember anything, he arrived at the scene, was he by himself, I think obviously he was, is that correct?
A. Yes.
Q. Okay. What occurred?
A. He [Officer Matthews] had arrived down in the parking lot there in front of the building and then myself and Officer Mathews attempted to speak and reason with Mr. Fisher again, about the keys and the whole issue.
Q. And Mr. Fisher was not reasonable?
A. No.
Q. Well, what did he do, what did he say, how did he act?
A. Mr. Fisher was acting very hostile, he was, he was yelling profanities and we continued to try and reason with him and talk to him about the situation and he wasn’t having any of that, he would just continue to yell and curse.
(Doc. 20, Ex. F, NT 23-24).
Further, Defendant Officer Dickmyer testified at his deposition:
A. I was trying to get the keys back. I was telling Mr. Fisher and as well informing him, you know, to please give the keys back to the employees.
Q. Did you order him to give you the keys?
A. I don’t recall, I don’t, I don’t think I ordered him to give me the keys, but I was trying to get, I was trying to reason with him the best I could.
Q. Okay.
A. I was trying to respect Mr. Fisher the best I could.
Q. Okay. Did you and Mr. Matthews decide anything, reach any final conclusions before you went to talk with Mr. Fisher?
A. The ...
Q. Let me rephrase that. Shaun, did you and Mr. Matthews decide what you were going to do when you decided to go to talk to Mr. Fisher again, or approach him again?
A. Well, we decided that, you know, false imprisonment charge could be brought but that wasn’t pur intentions at first, we wanted to reason with Mr. Fisher again, cause my intention was, I did not want to have to arrest him.
Q. All right. And, so, what was Mr. Fisher doing when you and Mr. Blake, or Mr. Matthews, I’m sorry, I’m claiming Matthew Blake again, forgive me. When yo and Mr. Matthews were, were talking, what was Mr. Fisher doing?
A. He was walking around his garage, pacing back and forth.
(Id., NT 31-32).
Additionally, at Plaintiffs preliminary hearing, Defendant Officer Dickmyer stated:
On the date and time in question, I was called down to the residence through York County Control that Mr. Fisher (indicating) had a complaint about two gentlemen on his property from the electric company.
When I met with Mr. Fisher, he was very upset. He was yelling some profanities. He was upset about the situation with the electric company employees coming onto his property.
I then spoke to William Lucas and Eugene Rossi after I spoke with Mr. Fisher. They said they—
ATTY. PASKEY: Objection. Hearsay. They have already testified, your Honor.
THE COURT: Sustained. Go ahead.
THE WITNESS: Okay. I am going over my notes here.
ATTY. PASKEY: Take your time, officer. No rush.
THE WITNESS: Okay. I then tried to get both parties to talk the situation out. Mr. Fisher was still yelling profanities. I then decided to wait for a backup officer to speak with Mr. Fisher.
When my backup officer arrived, we made contact with Fisher to try to get the keys back and to resolve the situation. Fisher was acting very combative and yelling profanities at my partner as well as myself.
We then asked Mr. Fisher to give the car keys back. He reached into his pocket to pull out the keys and then he put them back in his pocket.
Fisher continued to argue and yell profanities.
ATTY. PASKEY: I am going to object to relevance at this point, Your Honor. He is not being charged with disorderly conduct. Profanities at this point are irrelevant.
THE COURT: He is charged with resisting arrest. I think profanities sometimes is an element of how a person’s demeanor is at the time of the arrest.
ATTY. PASKEY: I would agree if we got to the point of the arrest, but we are not even at that yet.
THE COURT: Then I will sustain your objection.
THE WITNESS: I then told Fisher that he was under arrest. I then attempted to get control of Mr. Fisher. When I grabbed Mr. Fisher, I grabbed Mr. Fisher’s arm and he then pushed off of myself as well as the other officer and we both lost our grip.
Fisher then tensed up like he was going to strike us with his fists clenched and looking towards us. I displayed my pepper spray as well as the other officer, and he then complied. Fisher was then taken to the ground and handcuffed to the rear. When I did take Mr. Fisher to the ground, he did resist quite a bit there as well. He was finally taken into custody with no further incident.
(Doc. 21-2, Ex. A, NT 32-34).
Defendant Officer Dickmyer stated at Plaintiffs preliminary hearing that Plaintiff began using profanities after Defendant Officer Mathews arrived:
A. We got the car keys after Mr. Fisher was arrested.
Q. Okay. Did anyone tell Mr. Fisher at ay point, hold on to the car keys until we figure this out?
A. No.
Q. You didn’t hear that?
A. No.
Q. Okay. Did Mr. Fisher offer to give the car keys back at any point?
A. No.
Q. You said Mr. Fisher was very agitated when you were talking with him to the extent that he was using profanities. Correct?
A. Yes.
Q. Was he using profanities towards you?
A. No.
Q. Was he using profanities towards Officer Matthews?
A. Yes.
Q. That was after Officer Matthews got there. Correct?
A. Yes.
Q. So when yo first testified about the profanities, he wasn’t mad at you, was he, at first?
A. At first, no.
Q. Okay. But when it became apparent that the police were not going to either issue a citation or charge Mr. Lucas or Mr. Rossi with trespassing, Mr. Fisher would have gotten agitated with both you and Officer Matthews. Correct?
A. Yes.
Q. He wanted them charged. Right?
A. I am sorry?
Q. He wanted them charged with trespassing. Correct?
A. Yes.
Q. Because he called County Control. Correct?
A. Yes.
Q. And when you got to the scene, he told you that he wanted them charged with trespassing?
A. Yes.
Q. And you refused. Correct?
A. I told him no.
Q. Why?
A. Because of the situation that was going on. We were trying to get more information at first.
Q. Okay. Why would you tell him no when they were trespassing on his property? But then you were going to take him into custody for false imprisoning two people who sat alone in a car for 20 minutes?
A. When we first go there, I was trying to get the correct information as to what the incident was.
Q. Okay. When you got the information as you saw it about the incident, you still refused to charge them with trespassing. Correct?
A. I don’t recall that I refused to charge anybody at that time.
Q. They haven’t been charged with trespassing. Correct?
A. No, they haven’t.
Q. Now, you then indicated that you told Mr. Fisher he was under arrest?
A. Yes.
Q. Did you verbally tell him?
A. Yes.
Q. Okay. What did Officer Matthews do?
A. Officer Matthews then assisted me. I don’t remember what he said.
(Doc. 21-2, Ex. A, NT 39-41).
Plaintiff testified at his deposition that he tried to return the keys:
A. [Plaintiff] And Officer he basically says he says well what do you want me to do. I said I want ‘em arrested for trespassing I said it’s gotta, this gotta come to a stop.
Q. Okay what happens then?
A. I then said to Officer Dickmyer said to me he says well, he says I don’t really can’t say I can justify arresting them for trespassing?
Q. Did he tell you why?
A. No he did not offer an explanation.
Q. At that point did you make Officer Dickmyer aware or did he make you aware that he knew that you had their keys?
A. Oh he knew I had their keys. When he, when he showed up I let, he knew I had their keys.
Q. Okay all right so Dickmyer says something along the lines that he couldn’t justify arresting them for trespassing. What happens then?
A. That’s when I reached in my pocket, got the keys, gave them to Officer Dickmyer. I said if you ain’t gonna do anything you and those guys might as well get the fuck out of here.
Q. Okay so you actually took the keys out and handed them to Officer Dickmyer.
A. Yes. .
Q. And what did he do?
A. He says just hold onto them until we get straightened out.
Q. Okay had you actually handed the keys to him?
A. I attempted to hand the keys to Officer Dickmyer.
Q. Okay.
A. He did not take ‘em.
Q. And when you say attempted can you explain that to me?
A. Well I took ‘em out and I said to him, that’s when I said to him if you ain’t gonna do anything yo and those guys might as well get out off my property.
Q. Okay and Officer Dickmyer says you to hold onto the keys.
A. He said just hold onto ‘em till we get this straightened out.
Q. Okay now was anybody else there at that point other than you and Officer Dickmyer?
A. No.
(Doc. 21-2, Ex. C, NT 91-93).
34.-42., 44.-46. Defendant Officer Dickmyer testified at his deposition what happened after he started to talk with Plaintiff:
BAILEY: Describe if you can, please, in as much detail, what happened after you started talking with Mr. Fisher?
SHAUN DICKMYER:
We had, we tried to reason with Mr. Fisher to give, to give the keys back, and Mr. Fisher started to yell and say profanities and continue to act out of control. And I was concerned about the situation, I didn’t, I was, I didn’t know Mr. Fisher very well, I didn’t know what he was capable of, I was concerned that this, this situation might escalate and he continued to yell and he didn’t want to reason with us whatsoever. That’s when I decided that I verbally told Mr. Fisher that he’s under arrest, and I went to grab his, his arm to get control of him and Officer Matthews then went on the right side to gain control and that’s when Mr. Fisher tensed up and, and he pushed off of us. Myself and Officer Matthews then attempted to get control of him again, Mr. Fisher had tensed his arms up, like, you know, fighting stance, and I was concerned that he was going to try to strike one of us. So that’s when we both, we had to get out our pepper spray, and we didn’t spray him, but we ordered him to the ground with it, and as Mr. Fisher was going to the ground I then grabbed Mr. Fisher’s arm to get control of him, to place him on the ground and reason for going on the ground was to get, to gain control of Mr. Fisher. When he was on the ground, he was still tense and upon cuffing, he was still tensed up. And Mr. Fisher was then placed in handcuffs to the rear.
(Doc. 20, Ex. F, NT 34-35).
Defendant Officer Dickmyer testified at his deposition that Plaintiff managed to get free:
Q. ... he [Plaintiff] manages to disengage from both you and Mr. Matthews, he manages to get free of you, is that correct?
A. Yes.
Q. Okay. And what did he do after he got free of you?
A. That’s when he [Plaintiff] had tensed up in a fighting stance, with his fists clenched.
Q. Had his fists clenched.
A. Yes.
Q. He was facing you?
A. He was facing both of us; we were in front of him.
Q. Okay. Do you remember what he said?
A. I ...
Q. I can be more specific: did he threaten you?
A. I, no.
Q. Okay. Did he raise his fists, assuming a posture to strike you?
A. He had, he had kept his fists down at his side, no but he did not raise his fists.
Q. Okay. Did, I assume he had a few choice words for you, do you remember what he said?
A. I don’t recall what he said.
Q. Okay, what happened next?
A. That’s when I was concerned that something else may occur as far as either Mr. Fisher striking myself or Officer Matthews, that’s why I, I had engaged, had gotten out my pepper spray, as well as Officer Matthews. That’s when we ordered him to the ground.
Q. And, Shaun, what did he do when you ordered him to the ground?
A. He started going down to the ground and I walked over to gain control of Mr. Fisher as he was going down to the ground; I grabbed his arm and then he was placed on the ground, he wasn’t thrown on the ground, he was placed.
Q. Why didn’t you just let him get on the ground?
A. Because I wanted to get, gain control of him. Mr. Fisher could have went on the ground and popped back up.
Q. Okay. So you moved over to him and, and made contact with him at some point, you didn’t throw him to the ground or forcibly overdo it, you, you made sure you controlled him, he got on the ground.
A. Yes.
Q. What did Mr. Matthews do?
A. Mr. Mathews assisted in handcuffing Mr. Fisher.
Q. Okay.
A. He gained control of his other arm. Q. Did you give Mr. Fisher instructions at that point?
A. We had stated, place your hands behind your back.
Q. Okay. Did he listen to what you told him?
A. The hands went behind the back, but he was still tensing, and it was very, it was difficult to get the handcuffs on him at first.
Q. Okay. He was tense then. Ever been arrested?
A. No.
Q. All right. Did you give him instructions after you had him, after you got him handcuffed?
A. We had, we had helped him up and then placed him inside the car and that’s when Officer Matthews, after we had helped him up, that’s when we, Officer Matthews had taken the car keys out of Mr. Fisher’s shirt pocket.
Q. Okay. How did you know they were in his. shirt pocket?
A. Because when we were trying to reason with Mr. Fisher, he had taken the keys out and dangled them and then stuck them back n his pocket.
(Id., NT 43-47).
At Plaintiffs preliminary hearing, Defendant Officer Dickmyer testified as to Plaintiffs arrest:
Q. Did he [Plaintiff] verbally or orally threaten Officer Matthews before you put him in an arm bar and tried to take him to the ground?
A. Yes.
Q. What did he say?
A. I don’t recall.
Q. Threatened him how?
A. He [Plaintiff] was pointing at Officer Matthews yelling profanities.
Q. Did he [Plaintiff] threaten him [Matthews] with violence or make a move towards Officer Matthews before you put him in an arm bar and tried to take him to the ground?
A. No. No.
Q. Okay. So you said you tried to take him — you attempted to get him under control, which you clarified that as you grabbed his arm in an arm bar and tried to take him to the ground.
A. Yes.
Q. And was he questioning why he was being placed under arrest at that point?
A. No.
Q. Okay. Then I believe your testimony was he then pushed off and had a fist clenched?
A. He pushed off of us and then he clenched his fists like he was going to strike one of us.
Q. Did he pick his fist up to attempt to strike anybody?
A. No, no. He clenched his fists in a fighting stance.
Q. He was tense at that point (Indicating)?
A. Yes.
Q. And then you testified that he complied?
A. Afer we — once we got him down to the ground.
Q. That’s not how you testified on direct. You testified he pushed off, his fists clenched, you talked about the pepper spraying, then he complied.
A. Yes.
Q. And then you took him to the ground. What do you mean by he complied?
A. He complied after we got his hands behind his back.
Q. And after you got his hands behind his back, then what happened? He was on the ground when he complied or he was still standing?
A. He was on the ground.
Q. Okay. What happened after he was on the ground?
A. We attempted to place handcuffs.
Q. Okay.
A. And he passively resisted.
Q. Passively resisted. Are the terms fighting stance and passively resisted terms that you have been taught in your training—
A. Afer he was on the ground.
Q. Listen to my question. Are the terms passively resisted and taking a fighting stance terms that you have learned through your training about what constitutes resisting arrest?
A. Some.
Q. Okay. And then he was taken into custody. Correct?
A. Yes.
Q. And Mr. Lucas and Mr. Rossi, they were let go. Correct?
A. Yes.
(Doc. 21-2, Ex. A, NT 45-47).
During his deposition, Plaintiff testified as to his arrest as follows:
MR. FISHER: That’s when Officer Dickmyer grabbed my arm from behind.
Q. Okay what happened then?
A. It be easier for me to show you if I could; care if I stand up?
Q. Why don’t you just tell me and then
ATTORNEY BAILEY: Don’t lay. Don’t lay hands on Frank.
MR. FISHER: No no.
ATTORNEY LAVERY: Why don’t you just tell me and then if you wanna demonstrate that’s, but tell me first, then you can demonstrate?
MR. FISHER: Okay very good, when h grabbed my arm my reaction was to pull away.
ATTORNEY BAILEY: Entmyer (sic) when Entmyer (sic) grabbed you.
MR. FISHER: Dickmyer, when Officer Dickmyer ...
ATTORNEY BAILEY: Dickmyer, I’m sorry.
MR. FISHER: .. grabbed my arm (TAPE 1 END)
ATTORNEY BAILEY: Thank you Tom.
ATTORNEY LAVERY: Okay go ahead. You said you were reacton (sic) was to pull away.
MR. FISHER: You know, he came up from behind me, went to grab my arm and when he did I basically did a like a wrestling move. It startled me.
Q. Okay what arm did he grab?
A. My left arm.
Q. Okay and when you say you did like a wrestling move what do you mean by that?
A. I basically did a spin to try to break away from him.
Q. Okay what happens then?
A. Not expecting that being blind sided from the back like that.
Q. What happens then?
A. Well basically it’s a I get out and I’m at this time then I’m facing Dickmyer and Officer Matthews goes grabs me from the back. I basically you know again, I’m reacting to being attacked from the back and at that point they both I guess Dickmyer, Officer Dickmyer got his mace out and they ordered me to the ground and they basically forced me to the ground and made me eat dirt.
Q. Now when you say officer Matthews then after yo did the wrestling move as you described it with Officer Dickmyer, did Officer Matthews then grab you/ Is that what you’re saying?
A. Yes.
Q. Okay and then did you pull away or spin away from him too?
A. I don’t think he ever had a firm grip on me.
Q. Well but what did you? What I’m trying to find out is what did you do physically? Whether he actually got a firm grip or not is really not my question. What did you do physically when he went to grab you?
A. I’m gonna say my reaction was the same as it was when Dick, Officer Dickmyer grabbed me from behind. It was, I was just you know, I was getting attacked by these two officers and when they got the mace out that’s.
Q. Did you spin away from Officer Matthews in the same manner that you spun away from Officer Dickmyer as you described?
A. Yeah I’m gonna, I’m gonna say I didn’t get a complete breakaway. You know at that point like I said the I believe the two of ‘em actually backed away from me and that’s when they pulled their mace out.
Q. Oka what arm did Officer Mathews attempt to grab you by?
A. My right arm.
Q. Okay and at' that point he was to your back because you had spun around is that ...
A. Correct.
Q. ... the way it worked?
A. Correct.
Q. Okay, all right now you said that the officers forced you to the ground. How did they do that?
A. Well, when they had their mace on me and they said you’re under arrest you know I just, I said okay fine. And I relaxed and they basically I don’t wanna use the word jump me and they were, they forced me to the ground.
Q. Did they jump on your back? What did? I mean how did they — ...
A. I don’t wanna say they did. They didn’t jump on my. They approached me and physically grabbed my arms.
Q. That’s what I’m trying to find out.
A. One on, one on each side of me.
Q. Okay.
A. And forced me to the ground.
Q. Okay.
A. I ate dirt.
Q. when you say you ate dirt what do you mean by that?
A. I have a stone driveway.
Q. Okay so, are you. saying you’re (sic) face came into contact with the stones?
A. They put, they put me on the ground hard.
Q. Okay were there any marks or bruises on your body from that?
A. I had black and blue marks that sh