IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY :

:

Plaintiff, : CIVIL ACTION NO. 02-4382

:

:

v. :

:

:

ABINGTON TOWNSHIP, CHIEF OF :

POLICE WILLIAM KELLY, POLICE :

OFFICER NISBET, POLICE OFFICER J. :

KING, POLICE OFFICER BRUCE :

HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER :

MANN AND ABINGTON MEMORIAL : 

HOSPITAL AND MARK SCHNEE :

: 

Defendants :

MEMORANDUM

BUCKWALTER, S.J. July 6, 2004

Presently before the Court are Defendants Abington Township, et al’s Motion for 

Reconsideration of the Court’s decision on Counts II, V, and VII of Plaintiff’s Amended

Complaint. Plaintiff did not file a response to this motion. For the reasons set forth below,

Defendants’ motion is granted.

I. Background

According to Plaintiff, the following events led to Plaintiff’s present complaint. 

In July 2000, Plaintiff Candace Ray called the police to her house to intervene in a domestic

dispute. As a result of this call, the Abington police arrested Jon Grob, Plaintiff’s fiancé. 

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Shortly thereafter, Plaintiff went to Mr. Grob’s arraignment hearing and attempted to stop the

hearing by explaining that she was responsible for the alleged altercation, not Mr. Grob. Without

any direction from the magistrate, Defendant Officer King escorted her out. Plaintiff continued

to argue with Defendant Officer King as she was escorted out of the building, and soon

thereafter, Defendant Officer Nisbet arrived on the scene. Defendant Officer Nisbet eventually

convinced Plaintiff to leave in her car. He told her that if she returned, she would be arrested. 

After several minutes, Plaintiff did return to the courthouse area, but this time, she

parked on a public street that ran along one side of the courthouse. According to Defendant

Officer Nisbet, Plaintiff parked in a lawful parking spot facing east on the public street. Plaintiff

remained in her car, but appeared to be peering from the driver’s side seat of her car into the

northside courtroom windows. Plaintiff did not make any noise or cause any other disturbance,

however, when she pulled up, people in the courtroom stopped what they were doing, and

everyone looked out the window. At that point, and again, without direction from the magistrate,

Defendant Officer Nisbet left the courtroom and went out to confront Plaintiff. When he reached

the car, Defendant Officer Nisbet leaned inside the passenger side window, asked Plaintiff why

she had returned, and then asked Plaintiff for her identification. As Plaintiff searched for her

identification, she asked Defendant Officer Nisbet why it was needed and he informed her that he

was placing her under arrest. When Plaintiff learned she was to be arrested, her car rolled

forward, hitting Defendant Officer Nisbet. Defendant Officer Nisbet then dove inside the car,

and attempted to stop Plaintiff from fleeing. Defendant Officer King soon joined Defendant

Officer Nisbet in subduing Plaintiff. During the course of the struggle, Defendant Officer King

sprayed Plaintiff with pepper spray. Defendant Officer Bruce Haslam allegedly instructed other

officers responding to the scene via police radio. Throughout the time that the Defendant Police

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 Defendants dispute this account stating that although police officers hosed Plaintiff

down, she was fully clothed at the time. Defendants also deny that male police officers taunted

and jeered at Plaintiff while hosing her down.

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 Plaintiff herself does not have an independent recollection of this event, however,

Plaintiff’s fiancé was brought through the area where Plaintiff was being hosed down and

observed the incident. In his deposition, he states that he saw Plaintiff naked from the waist up,

being sprayed with water. She was being told to remove the rest of her clothing and was taunted

and insulted by 4 or 5 unidentified male police officers.

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Officers were subduing her, Plaintiff was screaming and crying. This event caused Plaintiff to

suffer a bipolar episode. 

 Defendant Officer King and other officers placed Plaintiff under arrest and

transported her in a police car to the Abington Police Station. Plaintiff requested she be taken to

the hospital for treatment for the pepper spray still burning her skin. Instead, Plaintiff was placed

in an open area, forced to strip in front of several male officers and various prisoners in nearby

cells, and sprayed with a hose.1 During this time, Plaintiff cried and screamed, while the

unidentified officers jeered and taunted her.2 Afterward, Plaintiff was given a paper dress, and

put in a cell. Six hours later, Plaintiff was taken to Abington Hospital.

II. Standard of Review

A motion for reconsideration should be granted when it is “consonant with justice

to do so.” American Guaranty and Liability Ins. Co. v. Fojanini, 99 F. Supp. 2d 558. 560-61

(E.D. Pa. 2000). If a court determines there were errors of law or if the movants present newly

discovered evidence, it may vacate its earlier order and issue a new order consonant with a just

decision. Id.

III. Discussion

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 Specifically, Plaintiff alleges she was excessively sprayed with pepper spray, and

subsequently hosed down, while naked and in full view of several male police officers and

inmates. Plaintiff also alleges that during the time she was being hosed down, the officers were

jeering and taunting her. Defendant Officer Nisbet corroborates Plaintiff’s story to the point

where he agrees she was hosed down in front of several male officers, but denies that she was

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a. Count II - Civil Rights Violation (Excessive Force)

The Defendants first ask for reconsideration of Count II of Plaintiff’s Amended

Complaint. The second count of Plaintiff’s Amended Complaint is against the Township of

Abington for civil rights violations for repeatedly and knowingly failing to enforce the laws of

the United States and allowing instead for police officers to employ excessive and illegal force. 

Under the United States Supreme Court holding in Monell v. Department of Social Services, 436

U.S. 658 (1978), a municipality may be held responsible for civil rights violations if the plaintiff

can prove that there was a longstanding custom or policy in place that had taken on the force of

law, and that a municipality employee, acting in accordance with that policy, violated the civil

rights of the Plaintiff. Monell, 436 U.S. at 691-95. A municipality cannot be held liable for

merely employing persons who commit tortious acts. There must instead be a causal link

between the tortious act and the municipality’s custom or policy. Beck v. City of Pittsburgh, 89

F.3d 966, 972 (3d Cir. 1996). 

Defendants in their motion for reconsideration assert, and upon further reflection

the Court agrees, that Plaintiff did not provide sufficient evidence of a custom or policy that

violated the civil rights of the Plaintiff. Plaintiff’s evidence on this matter is limited to her

personal account, and the account of Mr. Grob of one series of incidents. Although Defendant

Officer Nisbet corroborates much of this account in his deposition, he does not admit that the

practices Plaintiff alleged to have occurred3 were the implementation of a police department

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unclothed at the time or that the officers jeered and taunted her.

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policy or custom. Plaintiff provides proof of no other similar incidents, nor does she provide

deposition testimony by any member of the Abington Police Department or the Township that

would support her claim. For these reasons, Defendant’s Motion as to Count II is granted. 

b. Count V - Violation of Civil Rights

Count V of Plaintiff’s Amended Complaint alleges that Defendants violated her

rights against unreasonable searches and seizures. Defendants did not address this count in their

Motion for Summary Judgment, however, they now ask for reconsideration based upon their

claim of qualified immunity. 

Qualified immunity serves to “insulate governmental officials from liability for

assumable damages when the discretionary conduct of that official does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800 (1982). Defendants argue that Defendant Officer Nisbet had

probable cause to arrest Plaintiff when she returned to park outside the courtroom after being told

to leave the area by Defendant Officer Nisbet and after being told she was being arrested, she

allowed her car to move while Defendant Officer Nisbet was partially inside. Certainly there was

probable cause to arrest Plaintiff once she apparently made an attempt to flee. However, central

question is whether, at the time Defendant Officer Nisbet announced he was arresting Plaintiff, if

a reasonable person would believe he or she had probable cause to do so. 

First, the Court must consider with what Defendant Officer Nisbet intended to

charge Plaintiff when he decided to arrest her. During his deposition, Defendant Officer Nisbet

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stated that he planned to charge Plaintiff with disorderly conduct for “stopping the courtroom,

being asked to leave and returning.” (Defs. Abington Memorial Hospital and Mark Schnee’s

Mot. for Summ. J. Ex. A at 19.) A person may be charged with disorderly conduct under

Pennsylvania law if:

with intent to cause public inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, [s]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. Con. Stat. § 5503 (a) (2004). 

In this case, Plaintiff’s conduct within the courtroom may reasonably have been

considered disorderly, in that she entered the courtroom, and spoke in a loud voice in an attempt

to stop the proceedings. The Court finds that a reasonable person could have believed there was

probable cause to arrest Plaintiff for Disorderly Conduct for her prior misbehavior when she

returned to the area, based upon her behavior within the courtroom. Therefore, solely as to

Count V of Plaintiff’s Amended Complaint, Defendants are entitled to qualified immunity and

summary judgment is granted on this Count.

c. Count VII - Failure to Train

Defendants next argue that summary judgment on Plaintiff’s failure to train claim

should be granted, because Plaintiff failed to provide any evidence from supervisory members of

the Abington Police Department or the Township that a particular type of training was deficient

in some way, and that deficiency caused the Plaintiff’s harm. Plaintiff alleged that her civil

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4

 Plaintiff, her fiancé Mr. Grob, and Defendant Officer Nisbet all agree to some degree on

the following facts: Plaintiff’s hysterical crying and screaming began when she was maced

during her arrest and continued throughout the time she was transported to the police station. 

(Pl.’s Opp. to Defs. Abington Township, et al’s Mot. For Summ. J. Ex. B at 21-22; Defs.

Abington Memorial Hosp., et al’s Mot. for Summ. J. Ex. A at 29.) After Plaintiff’s arrival at the

Abington Police Station, Plaintiff was seen naked from the waist up, screaming and crying, arms

by her side, during the time when Defendant Police Officers were spraying her with water. (Pl.’s

Opp. to Defs. Abington Township, et al’s Mot. for Summ. J. Ex. B at 24-25.) It was not until

Plaintiff stood on the sink in her cell and tied a string around her neck that the Abington Police

Department called for an ambulance to take her to the hospital. (Defs. Abington Memorial

Hosp., et al’s Mot. for Summ. J. Ex. A at 35.) 

7

rights were violated because the Abington Chief of Police and the Township of Abington failed

to properly train the Defendant Police Officers to properly deal with persons afflicted with

Plaintiff’s condition. In order to prove a failure to train claim, Plaintiff must show that the

failure to train on the part of Defendants amounted to deliberate indifference to the rights of

persons with whom police come into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 392

(1989). In the present case, Plaintiff provided evidence, that if believed, might lead to the

conclusion that Abington Police Department members were not properly trained in how to

recognize and seek treatment for persons affected with mental and emotional impairments like

Plaintiff’s bipolar disorder.4 Ignoring ongoing hysterical behavior, for over three hours until

Plaintiff made a suicidal gesture could be considered “deliberate indifference.” However,

Defendants are correct in asserting that Plaintiff failed to provide any evidence that there was an

actual policy or lack of policy in place that the Abington Police department required training to

deal with persons with mental or emotional disorders. Therefore, Defendants’ Motion as to

Count VII is granted.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion for Reconsideration is granted. 

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8

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY :

:

Plaintiff, : CIVIL ACTION NO. 02-4382

:

:

v. :

:

:

ABINGTON TOWNSHIP, CHIEF OF :

POLICE WILLIAM KELLY, POLICE :

OFFICER NISBET, POLICE OFFICER J. :

KING, POLICE OFFICER BRUCE :

HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER :

MANN AND ABINGTON MEMORIAL : 

HOSPITAL AND MARK SCHNEE :

: 

Defendants :

ORDER

AND NOW, this 7th day of July, 2004, upon consideration of Defendants

Abington Township et al’s Motion for Reconsideration (Docket No. 31), and Plaintiff’s failure to

respond to this motion, it is hereby ORDERED that Defendants’ Motion for Reconsideration is

GRANTED as to Counts II, V, and VII and the Court’s order of May 27, 2004 is Vacated

regarding those aforementioned Counts. Judgment is entered in favor of Defendants on Counts

II, V, and VII..

BY THE COURT:

____________________________

RONALD L. BUCKWALTER, S.J.

Case 2:02-cv-04382-RB Document 35 Filed 07/07/2004 Page 9 of 9