The facts stated in this Memorandum are derived from the depositions of Plaintiffs Jesse

1

and Jason Houston, their mother Roberta Houston, Defendant Lieutenant Robert Humes (retired),

and Officer William Bonner. Unless noted specifically, the material facts are undisputed. Where

a factual dispute is identified, Plaintiffs’ version of the facts is accepted as true for purposes of

resolving this Motion. 

The group had been celebrating Jason Houston’s birthday. By all indications, George 2

Houston was heavily intoxicated. Jesse Houston Dep., at 18; Roberta Houston Dep., at 38;

Humes Dep., at 52. Jason admits to consuming at least nine beers through the night. Jason

Houston Dep., at 13, 18. Jesse Houston, who was driving, was not drinking and it is unclear

from the record whether Scott Bramble was inebriated. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JESSE HOUSTON, et al., : CIVIL ACTION

Plaintiffs, :

:

v. :

:

CITY OF PHILADELPHIA, et al., : NO. 05-CV-372-LDD

Defendants. :

Davis, J. May 31, 2007

MEMORANDUM & ORDER

Presently before the Court are Defendant’s Motion for Summary Judgment (Doc. No. 35)

and Plaintiffs’ Response in Opposition to Defendant’s Motion (Doc. No. 37). For the reasons

that follow, Defendant’s Motion is GRANTED.

FACTUAL AND PROCEDURAL HISTORY1

At approximately 1:30 a.m. on March 18, 2003, Plaintiffs Jesse and Jason Houston, along

with their brother George and a friend Scott Bramble, left a local bar en route to the home

Plaintiffs’ mother, Roberta Houston. As the group approached the 6400 block of Woodland 2

Avenue in the southwest section of Philadelphia, Pennsylvania they observed a group of three

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 1 of 16
It should also be noted that Plaintiffs’ deposition testimony is inconsistent with the 3

factual averments in the Complaint. See Comp. ¶8 (stating “[Plaintiffs] were attacked by three

individuals at 6448 Woodland Avenue close to their home and right in front of the 12th

District.”). Notwithstanding this inconsistency, for purposes of resolving this Motion, the Court

will accept the version of events proffered by Plaintiffs in their deposition testimony. 

2

males, John McCloy, Stephen Jones, and Siubal Moya, standing on the sidewalk near Roberta

Houston’s home. Jesse Houston admits that there was some degree of acrimony among the

groups relating to a prior altercation in which the Houstons’ friend, Danny Noble, allegedly shot

McCloy. Jesse Houston Dep., at 21-22. McCloy, Jones and Moya were scheduled to testify in

criminal court regarding this shooting on the same day that the facts giving rise to the instant

litigation occurred.

Upon observing the group standing near their mother’s home, Jesse and Jason Houston

along with Bramble exited the car and it is undisputed that they engaged in some sort of

altercation with McCloy, Jones and Moya. Plaintiffs contend that it was a verbal confrontation. 

Jesse Houston admits, “me and Steven [Jones], we had words....[W]hen I came up to him, he put

his hands up like he wanted to fight....[A]nd when I went towards him, he ran around the car

where my brother Jason got out of the car, and them two met.” Jesse Houston Dep., at 26-27. At

that point, Jason Houston and Jones were “in the middle of the street...having words.” Id. at 30. 

Describing the entire event, Jesse further states that “[t]here was yelling” and “a lot of

commotion.” Id. at 32-33. Jason Houston agrees that words were exchanged among the groups,

but contends that the McCloy group was yelling. Jason Houston Dep., at 29. Both Plaintiffs,

however, assert that there was no physical altercation. Id. at 52; Jesse Houston Dep., at 33. 3

This incident occurred just outside of Roberta Houston’s home which is located directly

across the street from the 12 District Headquarters of the Philadelphia Police Department. As th

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 2 of 16
In both parties’ briefs and in several depositions, Defendant’s name is spelled incorrectly 4

as “Hume.” The Use of Force Report completed and signed by Defendant makes clear that his

last name is actually Humes. Def.’s Ex. L. 

3

this confrontation occurred, Lieutenant Robert Humes exited the 12 District to smoke a 4 th

cigarette. The incident he alleges to have observed differs significantly from the events Plaintiffs

describe. Lt. Humes testified in his deposition that he observed at least three individuals engaged

in a fist fight. Lt. Humes states that Jason Houston and Moya were punching each other in the

face, and that an unidentified white male was standing on the periphery punching Jason Houston. 

Humes Dep., at 15-16. Other members of the respective groups were standing near the fight but

were not observed throwing punches at that time. Id. at 24. Lt. Humes testified that he heard

Jason Houston yelling that he was going to kill Moya and Lt. Humes generally describes this

event as a “brawl” and a “melee in front of my district.” Id. at 17-18.

Lt. Humes then verbally ordered the individuals to stop fighting. According to Lt.

Humes, Jason Houston and Moya refused to heed his instructions and continued punching each

other. Id. at 18. The other members of the group who were not directly involved with the fight

stepped back a short distance. Id. Lt. Humes next yelled through the window of the police

station for assistance and attempted to take Jason Houston to the ground. Id. at 19. Sergeant

Harvey Douglas, who responded to Lt. Humes’s request for assistance, grabbed Moya and took

him to the ground. Id. Lt. Humes alleges that Jason Houston “totally resisted any action I took

on him to try to get him to the ground...He pushed. He kicked. He scuffled. He tried to get away.” 

Id. Lt. Humes was able to get Jason Houston to the ground and place one handcuff on his wrist. 

Id. at 26. Jason Houston continued to resist and Lt. Humes radioed for further assistance. Id. 

Other officers arrived, “almost immediately” and an unidentified patrol officer helped Lt. Humes

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 3 of 16
Plaintiffs do not dispute that McCloy’s cellular phone was later recovered from Jason 5

Houston’s pocket. Plaintiffs’ Answer to Defendant’s Statement of Uncontested Facts ¶ 54. 

It is unclear what medical treatment, if any, George Houston received. Officer Bonner 6

stated that he observed no physical injuries and that George Houston was taken to the hospital as

a precautionary measure because he was highly intoxicated. Bonner Dep., at 29; see also Humes

Dep., at 52. 

4

roll Jason Houston onto his stomach and secure his other wrist in the handcuffs. Id. at 27, 31. 

Lt. Humes admits using “control holds” to subdue Jason Houston, but denies that he or any other

officer ever struck Jason Houston. Id. at 36; see also Lt. Humes’s Use of Force Form, Def.’s Ex.

L.

Lt. Humes then began an initial on-scene investigation to determine the details

surrounding this altercation. McCloy, Jones and Moya informed Lt. Humes that they had been

attacked by Jason and Jesse Houston in an effort to influence their testimony later that day

regarding the Noble-McCloy shooting. Id. at 40. They also informed Lt. Humes that during the

course of this fistfight, Jesse and Jason Houston stole a cellular phone belonging to McCloy. Id. 5

at 40, 44-45. Based on this information, Lt. Humes ordered other officers to also place Jesse and

George Houston under arrest. Id. at 45-46. All three Houston brothers were transferred to the

hospital by Officer William Bonner and his partner, Howard Lee. Bonner Dep., at 17. Jesse and

Jason were treated for minor abrasions and bruises, and released shortly thereafter. Jesse

6

Houston Dep., at 55; Jason Houston Medical Report, Pltfs.’ Ex. 8. The Houston brothers were

then taken to the police station where Jesse and Jason refused to make a statement. George

Houston made a statement to Detective Alan Fried indicating that he was asleep in the car and

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 4 of 16
Lt. Humes and Officer Bonner each testified that after being detained, both Plaintiffs 7

verbally abused the officers; this abuse included the use of racial epithets and threats to the

officers’ physical safety. Humes Dep., at 56-57; Bonner Dep., at 19.

5

not involved with the incident. Investigation Report, Pltfs.’ Ex. 1.7

McCloy, Jones and Moya were also transferred to the police station where they made

individual statements to Det. Fried. See id. They each again stated that Jesse and Jason Houston

exited the car and confronted the group threatening them not to testify regarding the NobleMcCloy shooting. Id. According to the statements, an altercation then ensued during which

McCloy’s cellular phone was knocked from his hands and retrieved by Jason Houston. Id. Jason

Houston then began fighting with Moya after Moya attempted to recover the cell phone. Id. 

McCloy and Moya also stated that Jesse Houston struck McCloy in the head with a bottle which

in turn initiated a fistfight among those two. Id. Jones stated that neither he nor George Houston

were involved with the fight. Id. 

George Houston was released without being criminally charged and he is not a party to

this litigation. Jesse and Jason Houston were charged later that day with robbery, aggravated

assault, intimidation and other charges. Criminal Complaint, Def.’s Ex. M. These charges were

dismissed on January 14, 2005. 

Plaintiffs, along with their mother, again tell a vastly different story of what occurred

after the police arrived on the scene. Jesse Houston stated that as officers exited the 12 District th

headquarters they ordered him to the ground, and that he immediately complied with these

instructions. Jesse Houston Dep., at 34. While prone, an officer kicked him in the torso several

times as another officer held him down by placing a knee against the back of Jesse Houston’s

neck. Id. at 40-43. Jesse Houston was then placed in handcuffs. Id. at 47.

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 5 of 16
6

Roberta Houston testified in deposition that on the night of this incident she awoke to the

sound of people screaming in the street outside of her apartment. Roberta Houston Dep., at 12. 

She went to the window and noticed an individual lying face down, handcuffed surrounded by

several officers who were simultaneously punching and kicking the individual. Id. at 19-20. She

opened the window and screamed “police brutality” several times which caused the officers to

cease their assault. Id. at 21. She then realized that the handcuffed individual was her son Jesse

and she exited the apartment to investigate the situation. Id. 

Jason Houston testified that he observed the officers on the scene grab his brother and

throw him against a car. Jason Houston Dep., at 33-34. The officers then handcuffed Jason

punched him in the face “more than ten times,” forced him to the ground and kicked him “over

ten times.” Id. at 41-42. According to Jason Houston, “they made sure we was in cuffs first.” 

Id. at 37. The assault ended when his mother came out into the street. Id. at 47.

Plaintiffs filed individual Complaints which were consolidated into one action on March

31, 2006. The Complaints assert claims pursuant to 42 U.S.C. § 1983 against the City of

Philadelphia, Lt. Humes, Det. Fried, Off. Bonner and six unnamed officers of the Philadelphia

Police Department alleging that these Defendants violated rights protected by the Fourth

Amendment to the United States Constitution. Plaintiffs have withdrawn all claims against the

City of Philadelphia, Detective Fried (Doc. No. 34) and Officer Bonner (Pltfs.’ Resp. n.1, Doc.

No. 37). The Court denied Plaintiffs’ Motion for Leave to File an Amended Complaint naming

the John Doe officers because it was not timely filed. (Doc. No. 31) Accordingly, Lt. Humes is

the only remaining Defendant. Plaintiff Jason Houston seeks to proceed to trial on the claims of

unlawful arrest, malicious prosecution and excessive force. See Pltfs.’ Resp. n.1, Doc. No. 37. 

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 6 of 16
7

Plaintiff Jesse Houston seeks to proceed on claims of unlawful arrest and malicious prosecution

but not excessive force because he cannot identify the officers who allegedly struck him. 

Defendant moves for summary judgment on all claims. Id. For the reasons that follow,

Defendant’s Motion for Summary Judgment (Doc. No. 35) is granted.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c). When ruling on a summary judgment motion, the court

must construe the evidence and any reasonable inferences drawn therefrom in favor of the

non-moving party. Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987); Baker

v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). The moving party has the burden of

demonstrating the absence of any genuine issue of material fact which “may be discharged by

‘showing’–that is, pointing out to the district court–that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After

a defendant properly supports the motion for summary judgment, the “plaintiff must produce

affirmative evidence,” which “must amount to more than a mere scintilla, but may amount to less

(in the evaluation of the court) than a preponderance.” Williams v. Borough of West Chester,

Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (citations omitted); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986) (finding that a plaintiff must present competent evidence from

which a jury could reasonably find in his favor); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 7 of 16
8

F.2d 1524, 1531 (3d Cir. 1990) (holding that after the movant’s burden is met, the non-movant

must establish the existence of each element on which it bears the burden of proof).

II. Unlawful Arrest

In order to prevail on a Section 1983 claim alleging unlawful arrest, Plaintiffs must

establish that Lt. Humes lacked probable cause to effectuate the arrest. Papachristou v. City of

Jacksonville, 405 U.S. 156, 169 (1972); Rogers v. Powell, 120 F.3d 446, 452 (3d Cir. 1997);

Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995). Probable cause exists

where the facts and circumstances within the officer’s knowledge at the time of arrest are

sufficient to warrant a reasonable, prudent and honest person in believing that a criminal offense

has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Myers,

308 F.3d 251, 255 (3d Cir. 2002); Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993). The

Court must look to the totality of the circumstances and use common sense in order to determine

whether Lt. Humes had probable cause to arrest Plaintiffs. U.S. v. Veal, 453 F.3d 164, 167-68

(3d Cir. 2006); Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997). Though factual disputes

often preclude probable cause determinations at the summary judgment stage, “the question is for

the jury only if there is sufficient evidence whereby a jury could find the police officers did not

have probable cause to arrest.” Sharrar, 128 F.3d at 818 (citing Deary v. Three Un-Named Police

Officers, 746 F.2d 185, 192 (3d Cir. 1984)). The fact that the criminal charges against Jason

and Jesse Houston were ultimately dismissed is irrelevant to the determination of whether

probable cause existed to effectuate a lawful arrest. Michigan v. DeFillippo, 443 U.S. 31, 36

(1979). For the purpose of resolving this Motion, the Court will accept Plaintiffs’ version of the

facts and will determine whether a reasonable officer viewing the incident would believe that a

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 8 of 16
Pursuant to Pennsylvania law, “a person is guilty of disorderly conduct if, with intent to

8

cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1)

engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable

noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or

physically offensive condition by any act which serves no legitimate purpose of the actor.” 18 Pa.

C.S.A. § 5503. An officer who observes a developing fist fight at 1:30 a.m. involving a group of

individuals yelling and causing a commotion has probable cause to believe that the crime of

disorderly conduct had been committed. Com. v. Clark, 761 A.2d 190, 191 (Pa. Super. 2000)

(valid disorderly conduct arrest where officer observed defendant in the crosswalk screaming

profanity at 2:00 a.m.); see also Com. v. Fedorek, 913 A.2d 893, 900 (Pa. Super. 2006) (goading

a fight sufficient for summary disorderly conduct conviction); Com v. Gilbert, 674 A.2d 284, 287

(Pa. Super. 1996). The fact that Jason Houston was charged with more serious crimes but not

disorderly conduct is not relevant to the determination of initial probable cause. See In re R.P.,

918 A.2d 115, 121 (Pa. Super. 2007) (finding probable cause for disorderly conduct arrest of

juvenile involved in fight who was yelling and refused to follow officers’ lawful instructions). 

In his deposition, Jesse Houston testified that officers approached him immediately after

9

exiting the police station presumably without receiving arrest orders from Lt. Humes. Even

under this version of the facts, Lt. Humes is entitled to summary judgment because Jesse

Houston would be unable to establish Lt. Humes’s personal involvement in the arrest. See

Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 696-95 (1978); Rode v.

9

crime had been or was being committed. 

By Plaintiffs’ own admission, Lt. Humes observed a dispute among six or seven males in

which there was “yelling,” “a lot of commotion,” and one individual “put his hands up like he

wanted to fight.” Jesse Houston Dep., at 26-26, 32-33. This occurred at 1:30 a.m., in the middle

of a busy Philadelphia street, within feet of the police station. Id. It is clear that these facts are

sufficient to cause a reasonable officer to believe that a crime was being committed; at that point

Lt. Humes had probable cause to arrest Jason Houston.8

Lt. Humes then performed an initial investigation in which McCloy, Jones and Moya

stated that Plaintiffs assaulted them in order to influence their testimony with regard to the

Noble-McCloy shooting and robbed McCloy of his cell phone. Based on this information, Lt.

Humes directed other officers to place Jesse Houston under arrest. This arrest was also amply

9

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 9 of 16
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) 

Plaintiffs do not challenge Humes’ testimony as to the content of the post-incident 10

statements made by McCloy, Jones and Moya. Thus, for purposes of resolving this summary

judgment motion, the content of the information related to Humes is not in dispute.

Lt. Humes had transferred from another police district just weeks before this incident. 11

Humes Dep., at 7. 

10

supported by probable cause. “When a police officer has received a reliable identification by a

victim of his or her attacker, the police have probable cause to arrest.” Sharrar, 128 F.3d at 818;

see also Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991) (“It is surely reasonable for a

police officer to base his belief in probable cause on a victim's reliable identification of his

attacker.”). 

Plaintiffs challenge the reliability of the statements by McCloy, Jones and Moya 10

identifying Plaintiffs as the aggressors because McCloy had a criminal history which was known

to officers on the scene. As a preliminary matter, undisputed evidence indicates that Lt. Humes

knew nothing of McCloy’s criminal history and had no reason to question his reliability. See 11

Humes Dep., at 22-23. Additionally, an officer need not conduct an exhaustive investigation into

the credibility of an alleged victim prior to relying on that person’s statement. See Sharrar, 128

F.3d at 818. Nor must the complainant’s veracity stand beyond reproach. Id. (holding that police

could rely on victim’s identification even where victim previously identified someone else as

attacker); Leporace v. City of Philadelphia, Civ. No. 96-6363, 1998 WL 309865, at *4 (E.D. Pa.

June 9, 1998) (finding that probable cause existed for arrest based on statement of apparent

victim even where seemingly disinterested bystanders discredited victim); see also Wilson v.

Russo, 212 F.3d 781, 791-92 (3d Cir. 2000). Rather, the victim must appear reasonably reliable

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 10 of 16
11

based on the person’s demeanor and the facts contemporaneously known to the officer at the

scene. See Beck, 379 U.S. at 91 (requiring “reasonably trustworthy information” of criminal

conduct to establish probable cause). Lt. Humes had no reason to discredit the consistent

statements tendered by McCloy, Jones and Moya and these statements, along with Lt. Humes’s

observations, provided the requisite probable cause to order Jesse Houston placed under arrest. 

This information also established adequate probable cause to support Lt. Humes’s decision to

maintain Jason Houston in custody and transport him to Detective Fried for further investigation. 

Defendant’s Motion for Summary judgment is therefore granted with respect to Plaintiffs’

unlawful arrest claims. 

III. Malicious Prosecution

In order to prevail on a claim of malicious prosecution, Plaintiffs must establish (1) that

Lt. Humes initiated criminal proceedings; (2) the criminal case ended in Plaintiffs’ favor; (3) Lt.

Humes acted without probable cause; (4) maliciously or for a purpose other than bringing

Plaintiffs to justice; and (5) Plaintiffs suffered a deprivation of liberty consistent with the concept

of seizure as a consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d 75, 82 (2007)

(citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). Plaintiffs cannot produce

evidence sufficient to satisfy three of the elements of a malicious prosecution claim and therefore

summary judgment must be entered in favor of Defendant on this claim as well. 

First, a prosecutor rather than a police officer initiates a criminal prosecution. O'Connor

v. City of Philadelphia, Civ. No. 05-2879, 2006 WL 1490134, at *7-8 (E.D. Pa. May 16, 2006);

Stango v. Rodden, Civ. No. 00-5709, 2001 WL 1175131, at *4 (E.D. Pa. Aug. 21, 2001); Harris

v. City of Philadelphia, Civ. No. 97-3666, 1998 WL 481061, at *5 (E.D. Pa. Aug. 14, 1998)

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 11 of 16
Notably, Lt. Humes is not even mentioned in the criminal complaints. 12

12

(citing Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J., concurring); Restatement

2d Torts § 653, cmt. g). A police officer is only liable for malicious prosecution when he

knowingly provides false information or otherwise prevents a prosecutor from making an

informed decision on whether to proceed with formal charges. Id. In this case, there is no

evidence to suggest that Lt. Humes knowingly provided false information or intentionally

withheld facts in an effort to influence the prosecutor’s decision. Even accepting that Lt. Humes

observed a verbal rather than physical altercation, it was McCloy, Jones, and Moya who provided

the factual allegations underlying the criminal charges. See Criminal Complaints, Def.’s Ex.

M. Additionally, Lt. Humes is at least two steps removed from the prosecutor’s decision to 12

proceed with criminal charges. Lt. Humes provided a statement to Detective Fried who then

made the independent determination to bring this case before the prosecutor for possible criminal

charges. See Garcia v. Micewski, Civ. No. 97-5379, 1998 WL 547246, at *9 (E.D. Pa. Aug. 24,

1998) (“[W]here a police officer presents all relevant probable cause evidence to an intermediary,

such as a prosecutor, the intermediary’s independent decision to seek a warrant, or to return an

indictment breaks the causal chain and insulates the officer from a section 1983 claim.”)

(citations omitted). 

Second, as stated above, Lt. Humes’s observations and the initial statements of McCloy,

Jones and Moya alleging assault, intimidation and robbery provided the requisite probable cause

to support Lt. Humes’s decision to arrest Plaintiffs and transport them to Detective Fried for

further investigation. 

Finally, Plaintiffs have produced no evidence indicating that Lt. Humes’s arrest was

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 12 of 16
13

motivated by malice rather than an honest attempt to serve the ends of justice. He did not know

any of the parties involved with this altercation and had no identifiable animus against Plaintiffs.

Humes Dep., at 22-23.

Accordingly, Defendant’s Motion for Summary Judgment is granted with respect to

Plaintiffs’ malicious prosecution claims. 

IV. Excessive Force

Constitutional claims alleging use of excessive force during the course of an arrest are

analyzed under the Fourth Amendment to determine whether the “officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Graham v. Conner, 490 U.S. 386, 397 (1989). Along

with assessing the nature and amount of force actually utilized, this Court must consider “the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of

officers or others and whether he is resisting arrest or attempting to evade arrest by flight.” Id. at

396. “Other relevant factors include the possibility that the persons subject to the police action

are themselves violent or dangerous, the duration of the action, whether the action takes place in

the context of effecting an arrest, the possibility that the suspect may be armed, and the number

of persons with whom the police officers must contend at one time.” Sharrar, 128 F.3d at 822;

see also Morais v. City of Philadelphia, Civ. No. 06-0582, 2007 WL 853811, at *5 (E.D. Pa.

Mar. 19, 2007). 

It is also true, however, that there can be no § 1983 liability against an unnamed officer

and that Plaintiffs must establish Lt. Humes’s personal involvement in the alleged constitutional

violation. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 696-95 (1978); Rode

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 13 of 16
Jason Houston’s statement that Lt. Humes “could have been,” id. at 83-84 one of the 13

officers committing the assault, does not constitute competent evidence and, as a result, fails to

create a material issue of fact as to Humes’s potential liability. This statement addresses

hypothetical possibilities and fails to offer the witness’s personal observations as required by

Fed. R. Civ. P. 602. Thus, this statement of conjecture is not “capable of being admissible at

trial,” Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1234 n.9

(3d Cir. 1993) and cannot defeat the instant motion for summary judgment, Philbin v. Trans

Union Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996). 

Jason Houston states that he included Lt. Humes in the present action because “he was

14

there that night.” Id. at 83.

In his deposition, Jason Houston also identified Det. Fried as one of the officers who 15

struck him. Id. at 84-85. Undisputed evidence indicates, however, that Detective Fried was in

the Southwest Detectives Office during Plaintiffs’ arrests. Further, the Court notes that

Plaintiffs’ inability to identify Lt. Humes comes despite the fact that he was the only officer

wearing a white shirt while all of the other responding officers were wearing blue patrol

uniforms. See id. at 89.

14

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Glass v. City of Philadelphia, 455 F. Supp.

2d. 302, 367 (E.D. Pa. 2006). In this case, Jason Houston claims that he was handcuffed,

punched in the face ten times, forced to the ground, then kicked ten times. Jason Houston Dep.,

at 41-42. Despite this alleged misconduct, Jason Houston cannot identify the officers who

committed the assault. Id. at 36, 81-83. Indeed, Jason Houston actually testified that Lt. 13

Humes, who he knows “from that night and other nights,” id. at 81, arrived on the scene after his

arrest and was not involved with the altercation. Id. Furthermore, neither Jesse nor Roberta

14 15

Houston witnessed the alleged assault on Jason and therefore could not identify the alleged

perpetrator. Jesse Houston Dep., at 37; Roberta Houston Dep., at 27. Approximately twenty

officers from two different police districts responded to the scene. Because Jason Houston is

unable to adduce any evidence indicating that Lt. Humes was the officer who committed the

assault, he cannot prevail on his excessive force claim. 

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 14 of 16
15

Accordingly, Defendant’s Motion for Summary Judgment is granted with respect to

Plaintiff Jason Houston’s excessive force claim. 

V. Qualified Immunity

Lt. Humes also asserts that even if his conduct ran afoul of the constitution, he is shielded

from liability by the qualified immunity doctrine. Pursuant to this doctrine, an officer performing

discretionary functions is “shielded from liability for civil damages insofar as [his] conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). This doctrine is intended

to preclude liability when an officer makes a reasonable but mistaken judgment so that “officials

should not err always on the side of caution because they fear being sued.” Hunter v. Bryant, 502

U.S. 224, 229 (1991) (quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)); see also Orsatti, 71

F.3d at 484. This immunity defense “protects all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

In order to determine whether an officer is immune, a two-step inquiry is required. The

Court must first determine whether the Defendant’s conduct violated constitutional or statutory

law. Saucier v. Katz, 533 U.S. 194, 201 (2001); Curley v. Klem, 298 F.3d 271, 277 (3d Cir.

2002). If no “violation could be made out on a favorable view of [Plaintiffs’] submissions,”

there is “no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at

201. Only where a violation is identified must the Court determine whether the right was “clearly

established” Id.

As described in detail above, Lt. Humes’s personal observation of a disturbance in the

street and the statements of McCloy, Jones and Moya provided sufficient probable cause to

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 15 of 16
16

support Lt. Humes’s decision to arrest Plaintiffs. Further, Plaintiffs have failed to produce

evidence sufficient to satisfy three elements of a malicious prosecution cause of action. Finally,

neither Plaintiffs nor their witnesses are able to identify Lt. Humes as the officer who allegedly

assaulted Jason Houston. Because the facts on record even when viewed in the light most

favorable to Plaintiffs fail to establish a constitutional violation, summary judgment must be

granted in favor of Lt. Humes and it is unnecessary for the Court to determine whether the

protections of the qualified immunity doctrine apply. See id.

CONCLUSION 

For the reasons stated above, Defendant’s Motion for Summary Judgment (Doc. No. 35)

is GRANTED and the claims asserted in this action are hereby dismissed with prejudice. An

appropriate Order follows.

Case 2:05-cv-00372-LDD Document 38 Filed 05/31/07 Page 16 of 16