In this memorandum, plaintiff, Joseph Kubicki, Sr. will be 1

referred to as “plaintiff.” Plaintiff, Joseph Kubicki, Jr. will

be referred to as “Joseph, Jr.” 

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH T. KUBICKI, on own :

behalf and as a parent and :

natural guardian on behalf of :

minor, Joseph Kubicki :

AND :

:

JOSEPH KUBICKI, a minor :

Plaintiffs :

:

VS. :

:

WHITEMARSH TOWNSHIP :

AND

POLICE OFFICERS RICHARD STEMPLE,: CIVIL ACTION

POLICE OFFICER RICHARD ZADROGA, :

AND POLICE OFFICER JEFFERY NOWAK :

 :

Defendants : NO. 04-5780

 MEMORANDUM AND ORDER

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Plaintiffs filed the instant lawsuit on December 14, 1

2004, pursuant to 42 U.S.C. § 1983 alleging violations of civil

rights as a result of an incident with several officers of the

Whitemarsh Township Police Department on December 24, 2002.

Specifically, plaintiffs allege that Officers Richard Zadroga,

Richard Stemple, and Jeffrey Nowak violated their Fourth Amendment

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 1 of 26
Plaintiffs earlier withdrew all claims against Whitemarsh 2

Township.

This matter was referred by the Honorable Petrese B. 3

Tucker, and the parties filed consents pursuant Fed.R.Civ.P. 73.

The children’s grandmother, Maryann Leahy, and her 4

boyfriend, Alex Conshick, lived in the downstairs apartment.

2

right to be free from unreasonable seizures when the police

illegally entered plaintiffs’ home without a warrant or exigent

circumstances and used excessive force in the course of detaining

and searching plaintiff. Section 1983 provides a vehicle for

imposing liability against anyone, who under color of state law,

deprives a person of “any rights, privileges, or immunities secured

by Constitution and laws.” 42 U.S.C. § 1983.

Defendants have filed a motion for summary judgment on

all remaining counts in the complaint. For the reasons which 2

follow, said motion will be granted.3

I. FACTUAL BACKGROUND

On December 24, 2002, plaintiff was at his residence at

402 Roberts Avenue along with plaintiff’s son Joseph Jr., age 12,

and plaintiff’s two-year-old daughter. This residence is a twostory house that had been divided into an upstairs apartment and a

downstairs apartment. Plaintiff resided in the upstairs apartment

which consisted of a living room, kitchen, two bedrooms, and a

bathroom. This upstairs apartment was entered by an exterior door 4

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 2 of 26
Mary Leahy is the daughter of Maryann Leahy, and at one 5

time, resided on the second floor with the plaintiff and their

children.

3

located on the ground floor that opened up to an interior hallway

which led to the second floor. The facts according to the

plaintiff are as follows: Plaintiff asserts that he along with his

two children were lying on the bed in his bedroom watching

television. Plaintiff did maintenance work at rental properties

owned by his brother-in-law and was, at this time, talking on a

cell phone with a tenant who had an electrical problem (Kubicki,

Dep. at 46,48, 80-81). Plaintiff noticed a light in the living

room area of the apartment, and believed the light to be his

brother-in-law “playing around.” Plaintiff asked Joseph Jr. to

investigate (Kubicki, Dep. at 53).

Joseph Jr. went into the hallway and discovered that the

light came from a flashlight held by a police officer. Joseph Jr.

ran back into the bedroom and told his father that it was the

police. Plaintiff got off the bed and headed into the hallway

while still speaking on the phone. As plaintiff approached the

officers, the officers were screaming “[W]here is she?.” Assuming

the officers meant Mary Leary (the mother of plaintiff’s two 5

children), plaintiff said that she was not there and was in prison

at the time (Kubicki, Dep. at 53-56).

The first officer that plaintiff encountered was Officer

Zadroga. Officer Zadroga told plaintiff to hang up the phone.

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 3 of 26
4

Plaintiff complied. Plaintiff then told the officers that she was

not there and he had proof (letters from the prison). Plaintiff

walked over a couple of steps to get the letters near his computer

when Officer Zadroga told plaintiff to put his hands behind his

head (Kubicki, Dep. at 56-57).

In response to Officer Zadroga’s instruction, plaintiff

was confused and put his hands behind his back. Officer Zadroga

grabbed plaintiff’s left wrist and put it up behind plaintiff’s

head. Plaintiff felt a “pop” in his left shoulder, and “screamed”

out in pain (Kubicki, Dep. at 59-63). Plaintiff was then patted

down. Plaintiff contends that he then asked about his daughter,

and when plaintiff turned toward the bathroom where his daughter

was, Officer Zadroga grabbed plaintiff by the injured left arm and

pulled plaintiff back. While this was happening, Officers Stemple

and Nowak searched the house. Shortly thereafter, the officers

rushed out of the house and went to the downstairs apartment

(Kubicki, Dep. at 68,71,85). Plaintiff asserts that three days

later he went to the hospital due to shoulder pain, and later went

to a specialist. Plaintiff had an MRI and was diagnosed with a

partial tear of the rotator cuff (Kubicki, Dep. At 90, 95). 

 Defendants, Officers Zadroga, Stemple, and Nowak, offer

a different version of the incident. Officers Zadroga and Stemple

testified at their depositions that they received a radio call for

a domestic dispute at 402 Roberts Avenue. They arrived almost

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5

simultaneously, and upon exiting their vehicles, both officers

heard a male voice yelling and cursing. This voice came from the

second floor. Neither officer knew that this residence consisted

of two apartments, and went directly to an exterior door that led

to the second floor (Zadroga, Dep. at 42-62, Stemple, Dep. At 24-

43).

The door was unlocked and, at this time, Officer Nowak

arrived. Officer Nowak also heard yelling upstairs. The officers

waited at the bottom of the stairs and when no one responded to

their repeated knocks and announcements of “Police,” all three

officers decided to go up the stairs (Zadroga, Dep. at 58-64,

Stemple, Dep. at 38-46, Nowak, Dep. at 12-13). 

Officer Zadroga stated that he walked to the top of the

stairs and saw plaintiff partially obstructed in a kitchen area

talking on a telephone. Officer Zadroga asked plaintiff twice to

come over to him. Officer Zadroga then asked plaintiff where Mary

(referring to Mary Leahy) was. When the officer didn’t get any

information, Officer Zadroga instructed plaintiff to put his hands

behind his head so the officer could pat plaintiff down because the

officer was concerned with everyone’s safety. Officer Zadroga

claims that plaintiff complied with this request and put his hands

behind his head. (Zadroga, Dep. at 72-108).

Officer Stemple testified in his deposition that he

followed Officer Zadroga up the stairs to the second floor. Once

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 5 of 26
6

there, Officer Stemple noticed that plaintiff was agitated. This

officer then went to search the rooms for other people, and found

plaintiff’s children in a bedroom watching television. Officer

Stemple stated that the children did not appear upset and that

Joseph Jr. told the officer that no one had been fighting. The

officers were then informed by radio that the domestic disturbance

was actually on the first floor, and they left the second floor

immediately (Stemple, Dep. at 55-76).

 

 II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) states that summary

judgment is proper “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 judgment as

a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp v.

Catrett, 477 U.S. 317, 322 (1986); Williams v. Borough of West

Chester, 891 F.2d 458, 463-464 (3d Cir. 1989). A factual dispute

is “material” only if it might affect the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For

there to be a “genuine” issue, a reasonable factfinder must be able

to return a verdict (or render a decision) in favor of the nonmoving party. Id.

On summary judgment, it is not the court’s role to weigh

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7

the disputed evidence and decide which is more probative, or to

make credibility determinations. Boyle v. County of Allegheny,

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). Rather, the court

must consider the evidence, and all reasonable inferences which may

be drawn from it, in the light most favorable to the non-moving

party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962);

Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

If a conflict arises between the evidence presented by both sides,

the court must accept as true the allegations of the non-moving

party. See Anderson, 477 U.S. at 255.

Once the movant has carried his initial burden, Rule

56(e) shifts the burden to the nonmoving party as follows:

When a motion for summary judgment is made and supported

as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse

party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule must

set forth specific facts showing that there is a genuine

issue for trial. If the adverse party does not so

respond, summary judgment, if appropriate, shall be

entered against the adverse party. FED.R.CIV. P. 56(e).

However, to raise a genuine issue of material fact "'the

[summary judgment] opponent need not match, item for item, each

piece of evidence proferred by the movant,' but simply must exceed

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8

the 'mere scintilla' standard." Petruzzi's IGA Supermarkets, Inc.

v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert.

denied, 510 U.S. 994 (1993). Summary judgment may be granted only

if, after viewing all evidence in the light most favorable to the

non-movant, no jury could decide in that party's favor. Tigg Corp.,

822 F.2d at 361.

 III. QUALIFIED IMMUNITY STANDARD

Defendants, Officers Zadroga, Stemple, and Nowak, assert

that plaintiffs’ claim of illegal entry and excessive force under

the Fourth and Fourteen Amendments pursuant to 42 U.S.C. § 1983

should be dismissed with prejudice because the officers have

qualified immunity.

Qualified immunity is an immunity from suit and not a mere

defense to liability. As a general rule, a qualified immunity issue

should be determined prior to trial as the purpose of qualified

immunity to is protect officials and public employees from

undergoing the burdens of litigation. Mitchell v. Forsythe, 472

U.S. 511 (1985). 

The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800

(1982) articulated the legal standard for analyzing a qualified

immunity claim: “[G]overnment officials performing discretionary

functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 8 of 26
9

statutory or constitutional rights of which a reasonable person

would have known.” Harlow, 457 U.S. at 818. A court must deny the

claim if the law is clearly established, “since a reasonably

competent public official should know the law governing his conduct”

unless he can either demonstrate extraordinary circumstances or that

he “neither knew nor should have known” about the legal right in

question. Id. at 818-19.

Anderson v. Creighton, 483 U.S. 635 (1987), clarified the

Harlow standard. The Court held that whether a government official

could claim qualified immunity for violating a constitutional right

depended on the “objective legal reasonableness” of the action. Id.

at 639. Thus, government officials are shielded from civil

liability not based on their subjective understanding of the law,

but only “as long as their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated.” Id.; see also Gruenke v. Seip, 225 F.3d 290 (3d. Cir.

2000). 

Anderson also more clearly defined the meaning of a

“clearly established right”: “The contours of the right must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right. This is not to say that an

official action is protected by qualified immunity unless the very

action in question has been previously held unlawful, but it is to

say that in light of pre-existing law the unlawfulness must be

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 9 of 26
10

apparent.” Anderson, 483 U.S. at 639; Gruenke, 225 F.3d at 299. 

“However, a good faith belief in the legality of the

conduct is not sufficient. Such belief must be objectively

reasonable. To determine reasonableness, a reviewing court must ask

‘whether a reasonable person could have believed the defendant’s

actions to be lawful in light of clearly established law and the

information he possessed.’” Parkhurst v. Trapp, 77 F.3d 707, 712

(3d Cir. 1996), quoting Anderson, 483 U.S. at 641. “The objective

facts control a decision on summary judgment, regardless of

allegations of intent.” Id.

Thus, the question before us in determining whether

Officers Zadroga, Stemple, and Nowak are entitled to qualified

immunity with regard to the warrantless entry is whether their

conduct was “objectively reasonable” in light of clearly established

law and the information that they possessed at the time of the

entry. In addition, the excessive force claim will also be

considered under the same objective reasonableness standard. 

The Supreme Court has repeatedly “stressed the importance

of resolving immunity questions at the earliest possible stage in

litigation.” Harlow, 457 U.S. at 818; Mitchell, 483 U.S at 526.

 A. ILLEGAL ENTRY

“The right of a man to retreat into his own home and there

be free from unreasonable government intrusion stands at the very

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11

core of the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27,

31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511

(1961)).

A warrantless entry into a home is considered a

presumptively unreasonable search under the Fourth Amendment.

Payton v. New York, 445 U.S. 573, 586 (1980). However, certain

circumstances can excuse the warrant requirement. Among these, is

exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 749

(1984). Such exigent circumstances are typically found where there

is a risk of destruction of evidence or escape of a defendant, or

where there is a threat of physical harm to a police officer or an

innocent individual. United States v. Velazquez, 626 F.2d 314, 317

(3d Cir. 1980).

“The burden of establishing exigent circumstances lies

with the government, and where officers assert exigency due to their

belief that a person is in danger, the officers must establish that

they reasonably believed that the person for whom they were

concerned was in imminent danger.” Parkhurst, 77 F.3d at 711

(emphasis added), Tillman v. Alonso, 2005 WL 3488927 (E.D. Pa.). 

In the instant matter, we find that the three officers,

Zadroga, Stemple, and Nowak, “reasonably believed” that a person or

person(s) was in “imminent” danger, and that “exigent circumstances”

existed in order to excuse their warrantless entry into the home of

the plaintiffs. Additionally, we find an entitlement to qualified

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Officer Zadroga testified that he had responded to this 6

residence on one prior occasion when he was with the Montgomery

County Sheriff’s Department. That one occasion was a dispute

between Mary Leahy (resident of the second floor) with Alex

Conshick (boyfriend of Mary’s mother and first floor residence). 

He, however, only spent a few minutes there because he had to

leave for a family emergency. (Zadroga, Dep. at 30, 32).

12

immunity since the officers’ conduct was “objectively reasonable”

under the circumstances. Parkhurst, 77 F.3d at 712. 

We will first address plaintiffs’ response to the summary

judgment motion citing case law supporting a finding of illegal

entry here, and arguing material facts which would preclude summary

judgment. Plaintiffs contend that it was unreasonable for the

officers to believe that the domestic disturbance was on the second

floor since Officers Stemple and Nowak testified that the radio call

did not specify who the complainant was (Stemple, Dep. at 25; Nowak,

Dep. at 19), and Officer Zadroga remembered the complainant being

Maryann Leahy who he knew lived on the first floor. Plaintiffs 6

claim that a jury could infer that the officers knew that the

premises had separate upstairs and downstairs apartments and that

Maryann Leahy, the complainant, lived on the first floor.

We do not find this to be material fact in dispute

precluding summary judgment. There is no question there was a

domestic incident at 402 Roberts Avenue. Defendants do not dispute

that the officers’ entry into the second floor was a

misinterpretation of the actual circumstances occurring. There is,

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 12 of 26
Officer Zadroga testified that he could not recall if he 7

knew that the property was a duplex having separate units

upstairs and downstairs. He stated that “it stands as a single

building. It looks like a house from the outside.” (Zadroga,

Dep. at 41-42). Officer Stemple testified that he never had any

prior contact with any of the plaintiffs and had never been

inside the 402 Roberts Avenue residence (Stemple, Dep. at 23). 

It is additionally claimed that there is an issue of 8

material fact concerning the volume of plaintiff’s voice while he

was on his cell phone that can only be resolved by a jury. We

disagree.

Plaintiff testified that he was on the phone, but was not

yelling or screaming (Kubicki, Dep. at 80-81). Joseph Jr.

testified that his dad was on the phone, but was not loud. “[I]t

was actually quiet” (Kubicki, Jr., Dep. at 22). However, as

discussed above, it is undisputed that the only noise coming from

402 Roberts Avenue when the officers arrived was from the second

13

however, no indication in the deposition testimony of any of the

three officers, that the officers knew the disturbance was actually

on the first floor. The relevant issue is whether the officers 7

reasonably believed that “exigent” circumstances existed in order

to enter the second floor premises without a warrant.

Here, the testimony of the three officers establishes a

reasonable belief that a person(s) was in “imminent danger.”

Officer Zadroga testified that he was backing up Officer Stemple who

arrived at the residence at approximately the same time. As Officer

Zadroga and Officer Stemple approached the premises, Officer Zadroga

could hear a “male voice agitated, loud, coming from the residence.”

Officer Zadroga could not make out what was being said, but heard

a “loud voice that sounded agitated” that was coming from the second

floor (Zadroga, Dep. at 45, 56). Officer Zadroga knocked on the 8

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 13 of 26
floor. In fact, Joseph Jr. testified that he didn’t hear any

noise (yelling, screaming, or banging) coming from the downstairs

residence that night before or after the police arrived (Kubicki,

Jr., Dep. at 21). 

14

door loudly, and after no response, he knocked hard again. Still,

no response was received, so Officer Zadroga pushed the unlocked

door open and yelled “Police.” Officer Zadroga still received no

response. The officer again yelled “Police.” With no response once

more, Officer Zadroga knocked louder and yelled louder, “Police,

police, somebody come to the top of the steps.” (Zadroga, Dep. at

59-60). When asked, “[W]hat threat was there when you were standing

downstairs,?” Officer Zadroga summed up why he entered the premises:

“[W]ell we got a call for a domestic [disturbance] that

was in progress. When we arrived on location we hear a

male voice agitated and loud. We go to the front door.

We knock. I knock loudly. Get no response. Knock again

loudly announcing that the police are here. Get no

response. And knock probably a third time and – I don’t

know could have been more times, again announcing that

the police are downstairs, somebody come to the top of

the steps . . . I was just going to say, so those

circumstances raised safety issues.” (Zadroga, Dep at

61).

Officer Zadroga added that after Sgt. Nowak arrived at the

door, and after announcing themselves again, the three officers

collectively came to a decision to enter the premises (Zadroga, Dep.

at 64). 

Officer Stemple testified that he and Officer Zadroga had

arrived simultaneously. As Officer Stemple approached the

residence, he heard “yelling” [and] “[C]ursing. Somebody sounded

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15

like they were very angry” (Stemple, Dep. at 23, 31). Officer

Stemple recognized a man’s voice and the man was cursing. “I heard

the F bomb a couple of times.” “Excessive cursing and yelling.”

“The cursing and yelling were just continuous” and one-sided with

no response coming back (Stemple, Dep. at 35-36). Officer Stemple

stated further that he and Officer Zadroga walked to a door on the

side of the house, and again they heard “yelling, and somebody was

very agitated.” Officer Stemple and Officer Zadroga went to the

entrance which had a screen door and a solid door that were open.

Officer Stemple looked through and saw the entrance to a flight of

stairs. Officer Stemple and Officer Zadroga opened the door and

Officer Zadroga yelled repeatedly , 4-5 times, “Police department

come to the top of the stairs.” (Stemple, Dep. at 39, 42-43).

Officer Nowak had arrived during Officer Zadroga’s announcements,

and all three officers believed there was a problem upstairs and

that they needed to go up (Stemple, Dep. at 45-46). 

Officer Nowak testified that he arrived at the residence

after Officers Zadroga and Stemple. When Officer Nowak approached

the door, he also could hear a “loud agitated voice” that was coming

from the second floor. Officer Nowak heard only one voice and

described it as “yelling or screaming” (Nowak, Dep. at 10, 12).

Officer Nowak explained, “[T]hat coupled with the domestic

[disturbance] that we had responded to and the fact that we were

getting no response to our announcement, led me to believe that

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 15 of 26
The evidence also indicates that the entry was minimally 9

intrusive. The testimony from the officers demonstrates that

they entered plaintiffs’ residence and only stayed as long as it

16

there may be somebody in danger upstairs, and it was incumbent upon

us to make an entry.” Officer Nowak noted that it was a collective

decision to enter (Nowak, Dep. at 10-13).

From the above testimony of the officers, we find that

all three officers reasonably believed that a victim could have been

in “imminent” danger constituting “exigent” circumstances justifying

the warrantless entry. The officers were called to a domestic

disturbance at a residence, and upon arrival, all heard an “angry,”

“agitated,” and “loud” male voice coming from the second floor.

Officer Zadroga announced their presence repeatedly and asked for

someone to come to the top of the stairs. “[T]he qualified immunity

standard ‘gives ample room for mistaken judgments’ by protecting all

but the plainly incompetent or those who knowingly violate the law.”

Malley v. Biggs, 475 U.S. 335, 341 (1986). This accommodation for

reasonable error exists because officials should not err always on

the side of caution because they fear being sued. Davis v. Scherer,

468 U.S. 183, 196.

Accordingly, we find that the defendants’ actions were

“objectively reasonable” “in light of clearly established law and

the information that [they] possessed” at the given time. Anderson,

483 at 641. On this finding, the officers are entitled to entitled

to qualified immunity as to this cause of action.9

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 16 of 26
was necessary to find out that they were in the wrong premises. 

Officer Zadroga testified that as soon as he heard over the radio

from Officer Swan that the “domestic” was downstairs, he “jetted

downstairs.” He estimated that the total time spent, from the

time the officers arrived at the residence to the time they went

downstairs, was “under five minutes” (Zadroga, Dep. at 93-94). 

Officers Stemple and Nowak also testified that they left the

premises as soon as the call came from Officer Swan that the

disturbance was in the downstairs apartment (Stemple, Dep. at 62,

Nowak, Dep. at 57-58). Furthermore, plaintiffs do not claim that

the officers were in their residence for an extended period of

time. In fact, both plaintiff and Joseph Jr. agreed that the

three officers quickly exited the premises. Joseph Sr. stated

that he believed the officers made a mistake in entering the

premises because “how they hightailed it out” (Kubicki, Jr., Dep.

at 86). Of course, there is a question of whether Officer

Zadroga used excessive force in “patting down” the plaintiff, and

this issue will be discussed infra.

17

 B. EXCESSIVE FORCE

The Supreme Court has firmly established the “basic

principal of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable.” Groh v.

Ramirez, 540 U.S. 551, 559 (2003); Payton v. New York, 445 U.S. 573,

586 (1980).

A police officer who has reason to believe that he is

dealing with an armed and dangerous individual, regardless of

whether he has probable cause to arrest may make a reasonable search

for weapons, even though he is not absolutely certain that an

individual is armed; reasonableness of action depends not on his

inchoate and unparticularized suspicion or hunch but on specific

reasonable inferences which he is entitled to draw from facts in

light of his experience. Terry v. Ohio, 392 U.S. 1, 27 (1968), Beck

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 17 of 26
18

v. State of Ohio, 379 U.S. 89, 91 (1964).

The sole justification of the search is the “protection

of the police officer and others nearby, and it must therefore be

confined in scope to an intrusion reasonably designed to discover

guns, knives, clubs, or other hidden instruments for the assault of

the police officer.” Terry at 29.

The three officers testified at their depositions as to

the events that transpired after they entered the premises. Their

versions are as follows: Officer Zadroga testified that he went up

the stairs first with Officer Stemple behind him. Officer Zadroga

did not have his weapon drawn. As Officer Zadroga went up the

stairs, he could see half of the plaintiff standing in a

kitchen/living area looking right at the officer with a telephone

in his hand. The other half of plaintiff was blocked by a kitchen

wall (Zadroga, Dep. at 64-72). Officer Zadroga advised plaintiff

to get off the telephone and step out of the kitchen. When

plaintiff did not comply, Officer Zadroga ordered plaintiff to come

out of the kitchen a second time, and explained plaintiff that the

police were there for a domestic call (Zadroga, Dep. at 70-73).

Officer Zadroga then asked plaintiff where Mary [Leahy] was. When

plaintiff did not provide any information to this question, Officer

Zadroga became concerned “[B]ecause [she] could be a possible

victim.” Officer Zadroga stated that considering the “totality of

the circumstances,” he was concerned for the safety of anyone in the

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 18 of 26
19

building (Zadgora, Dep. at 75-76).

Officer Zadroga testified further that he told plaintiff

to get out of the kitchen because “in the kitchen, there’s weapons,

there’s knives, possible weapons that could be used against us.” 

Officer Zadroga again asked plaintiff where Mary Leahy was and again

he received no answer (Zadgora, Dep. at 79). Officer Zadroga

stated:

“[A]gain, due to all the circumstances at this point,

feeling that something is – nothing is coming together.

There’s no explanation where Mary Leahy is or what

happened. So, I ask him at that point to turn around and

place his hands behind his head.” “I needed to pat him

down for my safety.” (Zadroga, Dep. at 79).

 

Officer Zadroga recalled that plaintiff complied with his

request to turn around and put his hands behind his head, and that

the only time he mentioned his shoulder was when he was asked to

turn around. Plaintiff put his arms back and said, “I have

arthritis in my shoulder. That’s what he said.” My response was

something like, “Okay, I just want to pat you down for weapons.”

Officer Zadroga added that plaintiff didn’t look uncomfortable and

never made any noises indicating that he was in discomfort or pain.

Officer Zadroga then told plaintiff to sit on the couch which

plaintiff did (Zadroga, Dep. At 83-84, 106-108). Officer Swan then

arrived on location and advised the three officers over the radio

that the domestic dispute was on the first floor (Zadroga, Dep. at

92-93). 

Officer Stemple did not witness the pat-down. He recalled

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 19 of 26
20

that neither he nor Officer Zadroga had weapons drawn when the

officers went up the stairs, but there was concern that the officers

encounter someone with a weapon. As he followed Officer Zadroga up

the stairs, Officer Stemple saw plaintiff on the telephone and

plaintiff was “very agitated.” Officer Stemple indicated that the

level of plaintiff’s voice, the words plaintiff was using, and

plaintiff’s body language gave the officer this impression (Stemple,

Dep. at 47, 50-52). Officer Stemple, however, never saw any

physical contact between plaintiff and Officer Zadroga since Officer

Stemple was busy looking in the other rooms of the premises for

other people. Officer Stemple also indicated that he never heard

plaintiff scream out in pain (Stemple, Dep. at 75, 85-86). 

Officer Nowak also testified that when Officer Zadroga

entered the upstairs apartment Zadroga’s gun was not drawn. Officer

Nowak stated that Officer Zadroga told plaintiff to get off the

phone which plaintiff eventually did. Officer Nowak recalled

“having him put his hands behind his head to pat him down” (Nowak,

Dep. at 40-42). Officer Nowak also recalled plaintiff mentioning

that plaintiff had a bad shoulder. Officer Nowak remembered Officer

Nowak using the “hands-behind-the-head technique, to pat him down.”

Officer Nowak saw Officer Zadroga grab the hands behind the head and

begin a pat-down. Officer Nowak didn’t recall seeing plaintiff put

his hands behind his back, and didn’t recall plaintiff making any

kind of noise indicating he was hurt (Nowak, Dep. at 46-48).

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21

Plaintiff, Joseph, Jr. gave his recollection of what

occurred after the officers entered his home. Joseph, Jr. testified

that when the police officer first encountered his father, the

officer told his father to “put his f’ing hands on your head, or

something.” In response to the question, “after your dad put his

hands behind his back, what happened next?, Joseph Jr. stated that

the officer “grabbed” his left arm “[A]nd twisted it. He like

twisted it back and put it behind his head like that.” Joseph Jr.

explained further that “[H]e grabbed with one [hand], and I’m pretty

sure that he like grabbed– he had another hand, too, like on his

elbow, like forcing it up.” Joseph Jr. added that his father

screamed in pain when the officer did this. The officer then patted

his father down and when his father went to move toward his

daughter, thinking he was finished being frisked, the officer

“grabbed his arm again and yanked it back” (Kubicki, Jr., Dep. at

23-30). 

As is evident from the above testimony, there are

differing accounts of how plaintiff was frisked, and the amount of

force used. Plaintiffs argue that these different versions of the

pat-down constitute material facts that are dispute in this case.

The defendants, however, readily concede that Officer Zadroga used

some degree of force to attain plaintiff’s compliance with his

directive to put his hands behind his head. Defendants assert that,

under any version, the force used was not excessive. In fact,

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defendants concede, for purposes of this motion only, that they

accept plaintiff’s recollection of the incidence. They contend that

even considering the facts most favorable to the plaintiffs,

excessive force has not been established. We agree.

Plaintiff’s recollection of the events in question is as

follows: Plaintiff testified that he was on the phone with a tenant

of his brother-in-law when the police came into the house. As

plaintiff was talking, he noticed a flashlight and then a black

figure. Plaintiff thought his brother-in-law was “playing around,”

so he sent his son to check it out. Plaintiff’s son came back and

said it was the police. Plaintiff then heard the officers yell

“Police,” but was confused as to why the police were there.

Plaintiff stated that he walked toward the officers and the officers

were screaming at him, “Where is she?” Plaintiff thought the police

were talking about the mother of his children (Mary Leahy) who was,

at that time, in prison. Plaintiff told the officers that she was

not there. Plaintiff also told the officers that he had letters

that proved such. Plaintiff walked over to get the letters and one

of the officers stood right by his side (Kubicki, Dep. at 53-56).

Plaintiff stated that, at this point, an officer (Zadroga)

told him to put his hands behind his head, but plaintiff got

confused and put them behind his back. When plaintiff did that, the

officer “decided to put my left arm behind my head for me.” The

officer “grabbed the wrist and placed – - took it and turned it, and

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 22 of 26
It is clear from this testimony that no excessive force 10

claims can be established against Officers Stemple and Nowak. In

addition, plaintiff conceded in their answer to the summary

judgment motion that “Officers Stemple and Nowak cannot be held

liable under a theory of excessive force” (Response to Summary

Judgment Motion at 19). 

23

placed my hand so it was behind my head.” When the officer did

this, plaintiff stated that he “screamed” because he “hurt my

shoulder bad” (Kubicki, Dep. at 57-59). Plaintiff explained further

that the officer had “his other hand up on my shoulder here. And

he grabbed this arm. And he took this arm and placed it. And he

put it up behind my head” (Kubicki, Dep. At 60). Plaintiff added

that plaintiff’s hands were behind his head for about “24-25

seconds.” Plaintiff then made a move toward his daughter in the

other room and the officer grabbed his left arm again and spun him

around (Kubicki, Dep. at 65, 88). 

10

“Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment. The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-second

judgments-in circumstances that are tense, uncertain, and rapidly

evolving-about the amount of force that is necessary in a particular

situation.” Graham v. Connor, 490 U.S. 386, 397 (1989).

Here, plaintiff’s testimony of his pat-down or frisk

simply does not establish excessive force under the objective

standard of Graham. In fact, plaintiff acknowledged that Officer

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 23 of 26
It can also be inferred from the testimony that plaintiff 11

had a pre-existing shoulder condition and that any movement of

his arms up behind his head, no matter how carefully performed,

would have caused him pain and even injury.

24

Zadroga could have had a reasonable belief that plaintiff had access

to a weapon in the kitchen area. Plaintiff stated that, “[H]e

[Zadgora] was like on my hip. I guess he thought I could get a

weapon” (Kubicki, Dep. at 54-56).

However, the most damaging evidence against the excessive

force claim is actually from the plaintiff himself. Plaintiff

testified that when he mistakenly put his hands behind his back,

Officer Zadroga “grabbed the wrist and placed – - took it and turned

it, and placed my hand so it was behind my head.” (Emphasis added).

Plaintiff didn’t testify that Officer Zadroga yanked his hands up

or forcibly shoved his hands up, but rather he twice used the word

“placed” and also used the words “took” and “turned” which can

hardly be deemed words describing excessive force.11

Moreover, “[T]he reasonableness of a particular use of

force must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 at 397. It would be easy in this case looking back to

conclude that Officer Zadroga overreacted in frisking plaintiff

because the officer was in the wrong premises, but as discussed

earlier, Officer Zadroga and the other officers reasonably believed

that “exigent circumstances” existed to justify the warrantless

Case 2:04-cv-05780-LKC Document 21 Filed 10/26/06 Page 24 of 26
Lastly, plaintiffs also have claims for bystander liability 12

against Officers Stemple, and Nowak for allegedly standing by

while excessive force was used. The defendants, however, are

also entitled to summary judgment on these claims since

plaintiffs have failed to establish the use of excessive force in

this case. 

25

entry. Likewise, under Graham’s objective standard, Officer Zadroga

was justified in being concerned for his safety and frisking the

plaintiff.12

Accordingly, since the amount of force used by Officer

Zadgora was reasonable from his perspective and even from

plaintiff’s testimony, the excessive force claim cannot survive a

motion for summary judgment on the merits. Further, since we find

the officer’s actions were “objectively reasonable” in light of the

information possessed, the officer is also entitled to qualified

immunity regarding this claim. Anderson, 483 at 641. We find that

there are no material facts at issue here, and the facts amply

support a qualified immunity grant. Accordingly, summary judgement

is awarded to the defendants on all remaining causes of action. 

An appropriate order follows.

 

 

 

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