1

IN THE UNITED STATES DISTRICT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

CANDACE RAY : CIVIL ACTION NO. 02-CV-4382

:

v. : JURY TRIAL DEMANDED

:

ABINGTON TOWNSHIP, :

CHIEF OF POLICE WILLIAM KELLY :

POLICE OFFICER NISBET, S. :

 BADGE NO. 2933, :

POLICE OFFICER J. KING :

 BADGE NO. 2530, :

POLICE OFFICER BRUCE HASLAM :

POLICE OFFICER MATZ, :

POLICE OFFICER RAWLS, :

POLICE OFFICER SCHOLL, :

POLICE OFFICER MANN, :

ABINGTON MEMORIAL HOSPITAL, :

and MARK SHNEE. :

 :

ORDER

AND NOW, this day of 2003, it is hereby ORDERED

that Defendants’, Abington Township, Chief of Police William Kelly, Officer Shawn Nisbet,

Officer Jeanette King, Officer Bruce Haslam, Officer John Matz, Officer Thomas Rawls, Officer

Scott Scholl, and Officer Robert Mann, Motion for Summary Judgment is DENIED.

 

 J.

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 1 of 18
2

IN THE UNITED STATES DISTRICT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

CANDACE RAY : CIVIL ACTION NO. 02-CV-4382

:

v. : JURY TRIAL DEMANDED

:

ABINGTON TOWNSHIP, :

CHIEF OF POLICE WILLIAM KELLY :

POLICE OFFICER NISBET, S. :

 BADGE NO. 2933, :

POLICE OFFICER J. KING :

 BADGE NO. 2530, :

POLICE OFFICER BRUCE HASLAM :

POLICE OFFICER MATZ, :

POLICE OFFICER RAWTZ, :

POLICE OFFICER SCHOLL, :

POLICE OFFICER MANN, :

ABINGTON MEMORIAL HOSPITAL, :

and MARK SHNEE, :

 :

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF CANDACE RAY’S

RESPONSE TO DEFENDANTS’, ABINGTON TOWNSHIP, CHIEF OF POLICE

WILLIAM KELLY, OFFICER SHAWN NISBET, OFFICER JEANETTE KING,

POLICE OFFICER BRUCE HASLAM, OFFICER JOHN MATZ, OFFICER THOMAS

RAWTZ, OFFICER SCOTT SCHOLL AND OFFICER ROBERT MANN, MOTION FOR

SUMMARY JUDGMENT

I. BACKGROUND

On July 2, 2000, the Abington police were called to the home of plaintiff, Candace Ray,

due to a domestic dispute with her fiancé, Jon Grob. (Plaintiff’s Amended Complaint ¶ 18, a

copy of Plaintiff’s Amended Complaint is attached hereto as Exhibit “A”). Plaintiff Ray did not

wish to press any charges against her fiancee, and requested that the police allow Mr. Grob to

voluntarily leave the premises. However, the Abington Police arrested Mr. Grob without

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 2 of 18
3

consideration of plaintiff’s Ray’s request. Plaintiff was distraught over her fiancee’s arrest and

contacted Chris Stewart to help bail Mr. Grob from jail. Id. at ¶¶ 18-24.

Plaintiff went to her fiancee’s arraignment to bail him out, and was told to leave even

though it was a public hearing. Plaintiff then drove off of the premises, but inadvertently drove

the wrong way and turned the car around. Plaintiff made a right onto Mt. Vernon and she

stopped in front of the District Magistrates Building, (Court 38-1-05) on Easton Road, still in her

car. It was plaintiff’s intent to find out what her fiancee’s bail was so that she could pay it. 

Plaintiff was talking on a C.B. radio to Mr. Chris Stewart when defendant Nisbet approached

Plaintiff’s car on the passenger’s side. Plaintiff’s car rolled forward and Defendant Nisbet was

accidentally knocked down because his head and upper body were inside of plaintiff’s car

window. Defendant Nisbet did not receive any medical treatment for this incident and instead

grabbed the keys out of the ignition of plaintiff’s car. Plaintiff’s fiancee was then locked in a

closet inside of the courtroom and Defendant King came running out of the courtroom, and

grabbed plaintiff Ray’s left arm (through the driver’s side window). Id. at ¶¶ 25-41.

Plaintiff was in the car, frightened and screaming, while defendant Nisbet and King held

plaintiff’s right and left arms extended. Defendant King then asked defendant Nisbet “if he

wanted to ...” and Defendant Nisbet yelled “yeah do it!” With this, defendant King emptied an

entire canister of pepper spray onto plaintiff Ray’s face. Plaintiff fiancee could hear plaintiff’s

screams of pain, from inside the courtroom, and Chris Stewart could hear plaintiff screaming and

crying via C.B. radio. Defendant King said “I used the whole damn can!”. Plaintiff’s hair was

saturated with pepper spray. At this time, 3 to 4 police cars came upon the scene. Defendant

Bruce Haslam and an unidentified lieutenants were talking on radios and giving instructions.

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 3 of 18
4

Officer Nisbet pulled plaintiff’s C.B. radio microphone out of the car completely, and later the

entire radio was pulled out. Defendant Officer King and other officers put plaintiff Ray into a

police car, because she was placed under arrest. Plaintiff was not read her Miranda warning. 

Due to plaintiff being in imminent fear for her safety , she again had a bi-polar episode. Id. at ¶¶

42-55.

Plaintiff immediately requested that she be taken to the hospital because the pepper 

spray was burning her, but this request was ignored. Once Plaintiff was taken to the Abington

Police Station, Plaintiff was brought to an area between the cells where she was isolated and

forcibly stripped naked and hosed down with water, while 5 to 6 male police officers watched,

made lewd lascivious comments, tormented, taunted, imitated her crying, and ridiculed Plaintiff.

Plaintiff’s fiancee saw plaintiff Ray with her clothes off, crying, with officers all around plaintiff,

ostracizing her, and tormenting her. Plaintiff was eventually given a paper dress, and put in a wet

cell. After several requests and approximately six hours later plaintiff Ray was taken to defendant

Abington Hospital. Id. at ¶¶ 56-68.

While at Defendant Abington Hospital, Plaintiff was given many unidentified shots/units 

of medication, which seemed to bring her out of her out of her bi-polar episode. Defendant Mark

Shnee was brought in to do an evaluation on plaintiff Ray and told police officers (at the nurses

station) “lock her up and throw away the key”. Defendant Marc Shnee also revealed plaintiff’s

medical history to the police officers and told them that Plaintiff was not currently taking

medication, and that she refuses to take medication. As a result, Plaintiff was put into four point

restraints ane was subsequently involuntarily committed to the Montgomery County Emergency

Services Building 50. Id. at 69-77.

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 4 of 18
5

II. STANDARD OF REVIEW

The standard for granting a motion for summary judgment is a stringent one. Rule 56 of

the Federal Rules of Civil Procedure provides that summary judgment may be granted only when

the evidence contained in the record, including “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 judgment as a matter

of law.” Serbin v. Bora Corp.,96 F.3d 66, 69 n. 2 (3d Cir. 1996). In deciding whether there are

any disputed issues of material fact which must be reserved for trial, the court must view the

record in the light most favorable to the non-moving party, together with all reasonable inferences

which can be drawn therefrom. The threshold inquiry is whether there are “any genuine factual

issues that properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986).

Once the moving party has carried its burden of establishing the absence of a genuine

issue material fact, “its opponent must do more than simply show that there is some metaphysical

doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986). Indeed, relevant Supreme Court decisions mandate

that a summary judgment motion be granted unless the party opposing the motion “provides

evidence ‘such that a reasonable jury could return a verdict in favor of the non-moving party.’” 

Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3rd Cir. 1996) (quoting

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 5 of 18
6

Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In other words, the non-moving party must “make a

showing sufficient to establish the existence of [every] element essential to that party’s case, and

on which that party will bear the burden of proof at trial.” Serbin, 96 F.3d at 69 n. 2 (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, if the

non-movant’s evidence on any essential element of the claims asserted is merely “colorable” or is

“not significantly probative,” the court must enter summary judgment in favor of the moving

party. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; see also Quiroga v. Hasbro, Inc., 934 F.2d

497, 500 (3rd Cir. 1991) (observing that non-movant’s effort to defeat summary judgment may not

“rest upon mere allegations, general denials, or ... vague statements”).

III. ARGUMENT

A. Count I of Plaintiff’s Amended Complaint Should Not Be Dismissed with

Prejudice 

Count I of Plaintiff’s Amended Complaint asserting a claim pursuant to 42 U.S.C. § 1983

for violation of Plaintiff’s Civil Rights should not be dismissed, as Plaintiff has set forth

sufficient facts supporting this claim.

A claim of excessive force is analyzed under an objective reasonableness test. Sharrar v.

Felsing, 128 F.3d 810 (3d Cir. 1997). The reasonableness of particular force used is analyzed

from the officer’s perspective and there must be careful attention to the facts of a particular case. 

Graham v. M.S. Connor, 490 U.S. 386, 396 (1989). Furthermore, there must be some evidentiary

basis on which to hold the defendant officers liable. Sharrar, 128 F.3d at 821. Contrary to

defendants’ position, Plaintiff has set forth a satisfactory evidentiary basis on which to hold the

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 6 of 18
7

officers at issue liable. 

Jon Grob testified in his deposition that while he was at his arraignment, Officers King

and Nisbet approached Plaintiff, who was sitting in her car outside of the courthouse. (Deposition

of Jon Grob at 73-76; a copy of Jon Grob’s deposition is attached hereto as Exhibit “B”). Jon

Grob saw Officers King and Nisbet holding Candace Ray’s arms outside of the car and he saw

Officer King spraying pepper spray in Ray’s face. Id. at 76. Grob saw Ray kicking and

screaming as the officers continued to spray Ray with pepper spray. Id. During the course of this

episode, Grob stated that Lieutenant Bruce Haslam came into the court room and allowed

Officers King and Nisbet to continue their assault of Ray. Id. at 81-82. Later, Grob saw Ray in

the hallway of the jail, crying, stripped naked from the waist up, and soaking wet. Id. at 92-93.

Grob heard the officers calling her names, such as “bitch,” all the while Ray was crying. Id. at 94. 

Additionally, at one point, Ray climbed up in her cell so that Grob could see her and he saw

where her body had been burnt by the pepper spray. Id. at 97. Candace Ray began experiencing a

bipolar episode during this incident and remembers Officer Nisbet telling her she was being

arrested. (Deposition of Candace Ray at 91; a copy of Candace Ray’s deposition is attached

hereto as Exhibit “C”). The next thing she remembers is waking up in Abington Hospital in fourpoint restraints. Id. at 98. Despite Ray’s lack of memory, Grob’s recount of what he saw happen

is more than enough to support a claim against the officers in question for use of excessive force. 

Even from the perspective of an officer, who must often use “some degree of physical coercion or

threat thereof to effect [an arrest],” the use of pepper spray and strong grip on Ray’s arms cannot

be considered “reasonable.” Graham, 490 U.S. at 396. 

Furthermore, stripping Plaintiff of her clothing in full view of male officers and prisoners

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 7 of 18
8

while hosing her down and taunting her cannot possibly fall within a police officer’s

constitutional shield. Based on these facts, Plaintiff’s Count I should not be dismissed with

prejudice. 

B. Count II of Plaintiff’s Amended Complaint Should Not Be Dismissed With

Prejudice 

Count II of Plaintiff’s Amended Complaint asserting a claim against Abington Township

pursuant to 42 U.S.C. § 1983 should not be dismissed, as Plaintiff has set forth sufficient facts

alleging the existence of an unconstitutional policy in Abington Township.

A municipality may be sued directly under § 1983 “if it is alleged to have caused a

constitutional tort through ‘a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.’” City of St. Louis v. Praprotnik, 485 U.S. 112,

121 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 90, 98 S.Ct. 2018,

2036, 56 L.Ed.2d 611 (1978)). “A plaintiff may be able to prove the existence of a widespread

practice that, although not authorized by written law or express municipal policy, is ‘so

permanent and well settled as to constitute a custom or usage with the force of law.’” City of St.

Louis, 485 U.S. at 127 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168, 90 S. Ct.

1598, 161301614, 26 L.Ed.2d 142 (1970)). Therefore, the fact that Abington Township Police

does not posses a formal policy authorizing the violation of constitutional rights by its police

officers, will not preclude municipality liability, as Defendants argue. Rather, the

unconstitutional policy and custom may be established by “showing that a given course of

conduct, although not specifically endorsed [by law], is so well-settled and permanent as virtually

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 8 of 18
9

to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (citing Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). 

The facts alleged by Plaintiff and Grob makes it a question of fact as to whether or not

there is an unconstitutional policy or custom widespread in Abington Township. As discussed

supra, Plaintiff’s constitutional rights were violated when the Police Officers in question utilized

excessive force when they arrested her. Additionally, the treatment of Grob is further evidence of

a widespread unconstitutional policy in Abington Township. As Ray was being sprayed

excessively with pepper spray, Grob watched from the window of the courtroom and heard Ray

screaming. Exhibit “B” at 76. The officers subsequently placed Grob in a small room, the size of

a closet, with no windows. Id. at 81. Grob could still hear Ray screaming from inside the room. 

Id. This instance indicates that a question of fact exists for a jury to determine whether or not

such conduct by the police is so widespread as to constitute policy or custom. Although such

policy or custom is not written in a handbook for police officers, such a policy may still be the

basis for municipality liability. Therefore, summary judgment on this matter is inappropriate. 

In addition to existence of an unlawful policy or custom, a Plaintiff must “demonstrate a

‘plausible nexus’ or affirmative link’ between the municipality’s custom and the specific

deprivation of constitutional rights at issue.” Id. As long as the causal connection is not too

tenuous, the question of causation is for the jury. Id. To establish liability on the part of a

municipality, such as Abington Township, a Plaintiff must simply establish whether policymakers

were aware of the unlawful conduct, but failed to take the appropriate measures to stop the

conduct. Bielevicz, 915 F.2d at 851-52. In this instance, a question of fact exists as to whether or

not the policymakers of Abington Township knew about the alleged violations. Therefore, Count

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 9 of 18
10

II of Plaintiff’s Complaint should not be dismissed.

Plaintiff’s other basis for asserting § 1983 liability on Abington Township is premised on

the failure to train the police. This may serve as the basis for § 1983 liability “only where the

failure to train amounts to deliberate indifference to the rights of persons with whom the police

come into contact.’ City of Canton v. Harris, 489 U.S. 378, 388 (1989). This failure to train may

be considered a “policy” for § 1983 liability purposes. Id. at 390. “Deliberate indifference” can

be shown when “the need for more or different training is so obvious, and the inadequacy so

likely to result in the violation of constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the need.” Id. Defendants claim that

no constitutional violations occurred. However, as demonstrated above, the officers in question

used excessive force when they arrested Candace Ray on July 2, 2000. This is clearly a

constitutional violation. Accordingly, Plaintiffs have set forth material facts to warrant denying

defendants’ motion for summary judgment.

C. Moving Defendants Are Not Entitled to Qualified Immunity

The moving Defendants are not entitled to qualified immunity. When qualified immunity

is raised on a motion for summary judgment as a defense to a claim under § 1983, the Court

“must begin with this threshold question: do the facts alleged, viewed in the light most favorable

to the party asserting the injury, show that the officers conduct violated a constitutional right?” 

Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct.

2151, 150 L.Ed.2d 272 (2001)). If the facts alleged by a Plaintiff are sufficient to demonstrate a

constitutional violation, “the Court must consider ‘whether it would be clear to a reasonable

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 10 of 18
11

officer that his conduct was unlawful in the situation he confronted.’” Id. at 277. “The Court

may not properly grant summary judgment on the basis of qualified immunity if the record

compels the opposite conclusion or if there exists disputed issues of material fact relevant to the

Court’s evaluation of the ‘objective reasonableness’ of the Defendants conduct.” Mantz v.

Chain, 239 F.Supp. 2d 486, 496 (D.N.J. 2002).

This case involves the straight forward issue of whether or not the Defendant officers

exceeded their authority and used excessive force during the arrest of Candace Ray. There can be

no doubt that when the officers grabbed Plaintiff’s arms and sprayed her with pepper spray and

when they stripped her naked and hosed her down, that they were not performing an activity

authorized by the constitution and a question of fact remains. 

In Tarlecki v. Mercy Fitzgerald Hospital, 2002 WL 156 5568 (E.D. Pa.), the Court denied

Defendants’ summary judgment motion where it was alleged that an officer ordered an arrestee in

handcuffs to the ground, dragged him on the floor and taunted him. Similarly in this case, when

Plaintiff was taken out of the police car and sprayed with pepper spray, the officers were not and

cannot be considered to have been engaged in a constitutionally protected activity. As stated

above, the standard for evaluating a claim of excessive force is one of objective reasonableness. 

Sharrar, 128 F. 3d at 820.

Determining whether forced used to effect an arrest is

reasonable under the Fourth Amendment requires the Court to

balance the nature and quality of the intrusion on the arrestee’s

Fourth Amendment interest against countervailing government

interest. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865,

1871, 104 L.Ed. 2d 443 (1989). Since reasonableness is not

capable of precise definition or a mechanical application, the

Court’s inquiry is conducted in light of all the circumstances of

a given case, including the severity of the climate issue,

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 11 of 18
12

whether the suspect poses an immediate threat to the safety of

the officers or others, whether he is actively resisting arrest or

attempting to evade arrest by flight. Id. at 1871-72. 

Here, all factors must lead to the conclusion that there is a question of fact which precludes entry

of summary judgment in Defendants’ favor on the issue of qualified immunity. Plaintiff was not

resisting arrest. Plaintiff was not an immediate threat to the safety of the officers or others. She

did not do or say anything to provoke the name-calling that took place. When Plaintiff went to

Grob’s arraignment and was subsequently asked to leave, she was not disruptive or loud. Exhibit

“B” at 70. There are no facts to support the contention that the police acted reasonably in their

treatment towards Plaintiff. Therefore, Defendants are not entitled to qualified immunity and

Defendants’ Motion for Summary Judgment should be denied.

D. Count IV of Plaintiff’s Amended Complaint Should Not Be Dismissed With

Prejudice

Count IV of Plaintiff’s Complaint alleging violations of Plaintiff’s substantive due

process rights as a result of her arrest and detention by the Abington Township defendants should

not be dismissed. Defendants are correct in their assertion that under an excessive force claim,

the facts are analyzed under the Fourth Amendment reasonableness standard, rather than under a

substantive due process standard. However, Plaintiff also have a claim under the Fourteenth

Amendment substantive due process standards which should not be dismissed.

To prove a violation of substantive due process, “the plaintiff must show that the state

acted in a manner that ‘shocks the conscience.’” Schieber v. City of Philadelphia, 320 F.3d 409,

417 (3d Cir. 2003) (quoting City of Sacramento v. Lewis, 523 U.S. 833 (1998)). Whether or not

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 12 of 18
13

conduct “shocks the conscience” depends on the particular facts at issue. Id. More than

negligence is necessary to “shock the conscience.” Id. at 419. In the case at issue, Defendants’

treatment towards Plaintiff, other than the excessive force used during her arrest, creates a

sufficient question of fact regarding Plaintiff’s substantive due process claim. After Plaintiff’s

arrest and after she was placed in jail, the officers stripped her down, hosed her off and called her

degrading names. Exhibit “B” at 92-97. This conduct may be qualified as conduct which

“shocks the conscience.” Therefore, Count IV of Plaintiff’s Amended Complaint should not be

dismissed.

E. Count VI of Plaintiff’s Amended Complaint Should Not Be Dismissed With

Prejudice

Count VI of Plaintiff’s Amended Complaint alleging violations of Plaintiff’s

constitutional right to privacy should not be dismissed, as questions of fact exist precluding

summary judgment. Defendants erroneously state that Plaintiff brought this claim under the

First, Fourth, Fifth, Ninth, and Fourteenth Amendments. As stated in Plaintiff’s Amended

Complaint, the violations of the right to privacy are brought pursuant to the First, Fourth, and

Fourteenth Amendments. (See ¶ 118 of Plaintiff’s Amended Complaint; a copy of Plaintiff’s

Amended Complaint is attached hereto as Exhibit “C”).

1. The First Amendment

Plaintiff was arrested as a result of her lawfully parking a vehicle next to a curb adjacent

to the municipal courthouse. This arrest was in violation of Plaintiff’s First Amendment Right to

assembly. The First Amendment states: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 13 of 18
14

speech, or of the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Const. Amend. 1. 

2. The Fourth Amendment

Plaintiff has set forth sufficient facts to support a claim of a violation of her right to

privacy under the Fourth Amendment. Defendants are correct in their statement prisoners have

no legitimate expectation of privacy in their prison cells. Warcloud v. Horn, 1998 WL 126917

(E.D. Pa)(citing Jones/Seymour v. LeFebvre, 781 F.Supp. 355, 357 (E.D. Pa. 1991)). However,

inmates “do retain certain rights of privacy under the Fourth Amendment, which include the right

not to be viewed naked by a member of the opposite sex.” Johnson v. Pa. Bureau of Corrections,

661 F.Supp. 425, 430 (W.D. Pa. 1987). Contrary to Defendants’ position, Plaintiff has set forth

evidence supporting the allegations of the violations of her right to privacy under the Fourth

Amendment. Specifically, Ray states that she was naked in her cell and five police officers were

around. Exhibit “C” at 130. Other prisoners could also see Ray, as one of the prisoners told

Grob that he saw what the police did to Ray. Id. These facts are sufficient to withstand a motion

for summary judgment, as there is a question of fact regarding whether or not the police violated

Plaintiff’s right to privacy under the Fourth Amendment.

3. Fourteenth Amendment 

Plaintiff has established facts to support her claim of violation of privacy under the

Fourteenth Amendment. “The right to privacy guaranteed by the Fourteenth Amendment

protects some confidential information, including medical reports.” Mraz v. County of Lehigh,

862 F. Supp. 1344, 1349 (E.D. Pa. 1994). This right to privacy regarding medical records applies

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 14 of 18
15

to prisoners, as “prison inmates do not shed all fundamental protections of the Constitution at the

prison gates.” Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001)(citing Wolff v. McDonnell, 418

U.S. 539, 555 (1974)). In the case sub judice, there is a question of fact as to whether or not

Plaintiff’s right to privacy under the Fourteenth Amendment was violated. Plaintiff testified in

her deposition that when she woke up in Abington Hospital, she saw four or five police officers

talking to Shnee and looking at the computer at her medical records. Exhibit “C” at 98. 

Plaintiff also heard Shnee tell the officers that she refused to take her medication. Id. Because

there is a right to privacy in one’s medical records, including the medical records of an inmate,

these facts are sufficient to withstand a motion for summary judgment. Therefore, Plaintiff’s

claim for violation of privacy under the Fourteenth Amendment should not be dismissed. 

F. Count VII of Plaintiff’s Amended Complaint Should Not Be Dismissed With

Prejudice

Count VII of Plaintiff’s Amended Complaint alleges violations against Defendants for

failure to adequately train police. In response, Plaintiff incorporates by reference the argument

with regard to Count II of Plaintiff’s Amended Complaint and request that the Court deny

Defendants’ Motion for Summary Judgment, as questions of material fact exist. 

G. Count IX and X of Plaintiff’s Complaint Should Not be Dismissed With

Prejudice

Plaintiff’s claims of false imprisonment and violations of the Pennsylvania Mental Health

Act should not be dismissed. Defendants are correct in their assertion that municipalities have

governmental immunity and are not liable for injuries caused by them or their employees, if the

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 15 of 18
16

acts constitute “a crime, actual fraud, malice, or willful misconduct.” Debellis v. Kulp, 166 F.

Supp.2d 255, 278 (quoting 42 Pa.Cons. Stat. § 8542(a)). Employees of the agencies enjoy the

same immunity as their employers under the Pennsylvania Tort Claims Act. Id. However, “if the

court determines that the employee’s act constituted ‘a crime, actual fraud, actual malice or

willful misconduct,’ the employee’s ability to claim both the Act’s overall restriction on liability

and the defense of official immunity is eliminated.” Id. at 278-79. Therefore, an officer may be

liable for false imprisonment where there was no probable cause to arrest the individual. Id. at

279. In the case at hand, Plaintiff was arrested for no apparent reason. Plaintiff was simply

seated in her car outside of the courthouse. Exhibit “C” at 90. While Plaintiff was present at

Grob’s arraignment for a brief period of time, she did not make a scene, yet was asked to leave

regardless by the magistrate judge. Id. at 86. Subsequently, when the officers grabbed

Plaintiff’s arms and began spraying her with pepper spray, she started screaming, but did not

resist arrest. Exhibit “C” at 84. These facts, taken in light most favorable to plaintiff, establish a

genuine issue as to whether or not Plaintiff was arrested with probable cause. Therefore, based

on this unlawful conduct, the individual officers named as defendants in this case are not entitled

to immunity under the Pennsylvania Tort Claims Act, thereby precluding summary judgment on

the false imprisonment claim. 

Additionally, as established supra, federal claims against the Defendants remain. 

Therefore, this Court retains supplemental jurisdiction over the state law claims stated in Counts

IX and X of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1367.

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 16 of 18
17

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment should be denied.

FROST AND ZEFF

 

GREGG L. ZEFF

Date: Attorney for Plaintiff

 

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 17 of 18
18

IN THE UNITED STATES DISTRICT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : CIVIL ACTION NO. 02-CV-4382

:

v. : JURY TRIAL DEMANDED

:

ABINGTON TOWNSHIP, :

CHIEF OF POLICE WILLIAM KELLY :

POLICE OFFICER NISBET, S. :

 BADGE NO. 2933, :

POLICE OFFICER J. KING :

 BADGE NO. 2530, :

POLICE OFFICER BRUCE HASLAM :

POLICE OFFICER MATZ, :

POLICE OFFICER RAWTZ, :

POLICE OFFICER SCHOLL, :

POLICE OFFICER MANN, :

ABINGTON MEMORIAL HOSPITAL, :

and MARK SHNEE. :

 :

CERTIFICATION OF SERVICE

I, GREGG L. ZEFF, ESQUIRE, hereby certify that on November 20, 2003, true and

correct copies of Plaintiff’s Responses to Defendants’ Summary Judgment Motions were

forwarded to counsel via Hand-Delivery to the below listed counsel:

Joseph J. Santarone, Jr., Esquire David R. Za slow, Esquire

MARSHALL, DENNEHY, WARNER, WHITE & WILLIAMS

 COLEMAN & GOGGIN 1500 Lancaster Avenue

One Montgomery Plaza, Suite 1002 Paoli, PA 19301-1500

Norristown, PA 19401-4814

 

GREGG L. ZEFF, ESQUIRE

Case 2:02-cv-04382-RB Document 25 Filed 11/20/2003 Page 18 of 18