1Plaintiff is not complaining about prison conditions during his incarceration at York

County Prison. Rather, he complains about excessive police force used during his arrest which

resulted in his confinement. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

REGINALD STUCKEY, : CIVIL ACTION NO. 4:CV-05-2354

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Blewitt)

:

TODD A. ROSS, et al., :

:

Defendants :

 REPORT AND RECOMMENDATION

I. Background. 

Plaintiff, Reginald Stuckey, an inmate at the York County Prison, York, Pennsylvania, filed,

pro se, the instant civil rights action pursuant to 42 U.S.C. § 1983 on November 14, 2005. (Doc.

1).1 The Plaintiff also filed an application for leave to proceed in forma pauperis (Doc. 2). We

preliminary screened the Complaint. 

Since the Complaint did not specify any conduct, wrongful or otherwise, of the named

Defendants (Doc. 1, p. 2), i.e. Defendants Todd A. Ross, Police Officer, York City Police

Department, and Officer Hansel, York City Police Department, on November 18, 2005, we issued

an Order directing Plaintiff to file an amended complaint. (Doc. 6). On December 5, 2005,

Plaintiff filed his Amended Complaint. (Doc. 7). We now screen Plaintiff‘s amended pleading. 

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 1 of 11
2Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

3The Plaintiff completed an application to proceed in forma pauperis and authorization

to have funds deducted from his prison accounts. The court then issued an administrative order

directing the warden to commence deduction of the full filing fee due the court from the

Plaintiff’s prison trust fund account. (Docs. 3 and 4). 

2

As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant to 

28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995,2 (the “PLRA”), obligates the Court to

engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 

28 U.S.C. § 1915.3 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act,

provides: 

(2) Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

court shall dismiss the case at any time if the

court determines that (A) the allegation of

poverty is untrue; or (B) the action or appeal

(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted;

or (iii) seeks monetary relief against a

defendant who is immune from such relief.

In reviewing the Complaint under 28 U.S.C. §1915(e)(2)(B), we have determined that the

Plaintiff is unable to maintain this action as against one of the named Defendants, i.e. York City

Police Department (“YCPD”). 

II. Section 1983 Standard. 

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:

(1) that the conduct complained of was committed by a person acting under color of state law; and

(2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 2 of 11
4Plaintiff alleges in his pleading that Defendants Ross and Hansel are police officers with

YCPD. (Doc. 7, p. 2). This is sufficient to show that these Defendants were state actors. We

also note that Plaintiff requests $200 million in damages against Defendants. (Id.). 

3

by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v.

Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993). Further, Section 1983 is not a source of substantive

rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v.

Doe, 536 U.S. 273, 284-85 (2002).4 See also Holocheck v. Luzerne County Head Start, Inc., 385

F. Supp. 2d 491, 498-499 (M. D. Pa.). 

It is well established that personal liability under section 1983 cannot be imposed upon a

state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362

(1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt,

supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged

constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such

personal involvement. Id. Each named defendant must be shown, through the complaint’s

allegations, to have been personally involved in the events or occurrences upon which Plaintiff’s

claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1998):

A defendant in a civil rights action must have personal involvement

in the alleged wrongs . . . . [P]ersonal involvement can be shown

through allegations of personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual knowledge

and acquiescence, however, must be made with appropriate

particularity. (Citations omitted).

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 3 of 11
5

In our Order of November 18, 2005, we indicated that if Plaintiff is construed as

asserting a § 1983 action for malicious prosecution, he must show that underlying criminal

charge was favorably terminated in his favor. See Gilles v. Davis, C.A. No. 04-2542, (3d Cir.

10-25-05), slip op. 23, 2005 WL. We also noted that even if Plaintiff was convicted of a criminal

offense in York County, his original claims against the Defendants that they charged him to

cover up their excessive force used on him would possibly be barred by Heck v. Humphrey,

512 U.S. 477 (1994), which precludes a §1983 claim challenging a Plaintiff‘s conviction. As the

Third Circuit recently stated, “[u]nder Heck, a § 1983 action that impugns the validity of the

Plaintiff’s underlying conviction cannot be maintained unless the conviction has been reversed

on direct appeal or impaired by collateral proceedings.” Gilles v. Davis, C.A. No. 04-2542, (3d

Cir. 10-25-05), slip op. 21. Further, as noted above, Heck required that a Plaintiff asserting a

malicious prosecution claim under § 1983 show that the previous criminal action terminated in

his favor. Id., p. 23. 

4

A civil rights complaint must state time, place, and responsible persons. Id. With these

principles in mind, Plaintiff’s allegations with respect to the Defendants will be discussed. 

III. Allegations of the Complaint.

Plaintiff alleges excessive force was used by police officers Ross and Hansel of the York City

Police Department during his arrest on September 6, 2005. (See attachment to Plaintiff’s original

Complaint (Doc. 1), unnumbered typed pages dated November 8, 2005, & Doc. 7, p. 2). Plaintiff

avers in his Amended Complaint that, while Defendant Ross was taking him into custody on the

stated date, “Ross repeatedly punched, kicked, kneed, elbowed and used an retractable baton on

Plaintiff... .” Plaintiff also states that Defendant Hansel “is being sued in his individual and capacity

(sic) even those (sic) both of the officers acted in concerted action each aiding one another in

causing bodily injury to Plaintiff ... violating his 8 Amendment Rights.” (Doc. 7, p. 2, Facts Section).

Plaintiff claims that he still has visible scars on his body as a result of “being repeatedly beaten by

the Defendants Officer Ross and Hansel.” (Id.). Plaintiff claims that the conduct of Defendant

officers “violated.. My 8 Amendment Rights.”5 

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 4 of 11
 Plaintiff now makes clear in his amended pleading that he is pursuing only his excessive

force claim against Defendants. 

6

In his original Complaint, Plaintiff did not allege with any specificity the personal

involvement of each Defendant, and he did not state what each individual Defendant

personally did to use excessive force on him during his arrest. 

5

Plaintiff requests as relief $200 million in damages. 

IV. Discussion. 

The doctrine of respondeat superior is not an acceptable basis for liability under Section

1983. See Drummer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Rizzo v. Goode, 423 U.S. 367

(1976). Liability may only be based upon the Defendant’s personal involvement in conduct

amounting to a constitutional violation. Sutton v. Rasheed, 323 F. 3d 236, 249-250 (3d Cir. 2003).

Plaintiff has now alleged Defendants Hansel’s and Ross’ personal involvement in alleged

constitutional deprivations which is a requirement in a § 1983 case.

 In his Amended Complaint, Plaintiff has properly alleged the conduct of each Defendant

police officer with respect to his excessive force claim.6 However, we do not find that the Eighth

Amendment governs Plaintiff‘s instant claim. The Court in Lesher v. Colwyn Bor., 2002 WL

31012959 *3 (E.D. Pa.), stated that “[i]n Graham [v. Connor, 490 U.S. 386 (1989)], the Supreme

Court unequivocally decided that the Fourth Amendment governs claims that law enforcement

officials used excessive force in the course of an arrest ... .” (Citing Graham at 395). The Lesher

Court then found that its plaintiff‘s excessive force claim which arose as a result of an alleged police

beating at plaintiff‘s home, was a Fourth Amendment claim since plaintiff was “seized” within the

meaning of the Fourth Amendment. Id. The Lesher Court concluded that “Plaintiff‘s excessive

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 5 of 11
6

force claim against the Defendant officers must be analyzed under the ‘reasonableness standard’

of the Fourth Amendment... .” See also Cherry v. Garner, 2004 WL 3019241 *11-*12 (E.D. Pa.).

Therefore, while Plaintiff references the Eighth Amendment in his Amended Complaint, we

find that he has plead a violation of the Fourth Amendment against Defendants Ross and Hansel.

However, Plaintiff has not alleged a claim of municipal liability as against Defendant YCPD. 

There is no municipal liability alleged against YCPD. In both of Plaintiff‘s pleadings, he failed

to make any allegations against YCPD. Nor did Plaintiff directly state what YCPD did to violate his

civil rights. (Docs. 1 & 7). In any event, the Amended Complaint’s allegations are insufficient to

establish a failure to train claim against YCPD, since the Plaintiff has failed to claim any policies or

practices issued by YCPD which led to the alleged violation of his constitutional rights. 

When a claim against a municipality or governmental entity such as YCPD is based on

Section 1983, the entity can only be liable when the alleged constitutional violation implements

or executes a policy, regulation or decision officially adopted by the governing body or informally

adopted by custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct.

2018 (1978). A governmental custom for purposes of Section 1983 is defined as “such practices

of state officials...[as are] so permanent and well-settled as to constitute a ‘custom or usage’ with

the force of law.” Id. at 691. Custom can be shown by evidence of knowledge and acquiescence

by high-level policy-makers. Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir. 1989). The court

must then inquire “whether there is a direct causal link between a municipal policy or custom and

the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). The

policy must be the “moving force” behind the constitutional violation. Cornfield v. Consolidated

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 6 of 11
7Specifically, Plaintiff does not claim that YCPD had any policy or practice of allowing its

officers to use extreme force in effectuating an arrest. 

7

High Sch. Dist. No. 230, 991 F.2d 1316 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)

(plurality opinion)). Therefore, in this case, in order to claim a Section 1983 violation by YCPD, it

would have to be alleged that the PD officials had knowledge of a pattern or practice of using

excessive force during the arrests of its citizens and were aware of and tolerated similar force in the

past. The Plaintiff has not made such an allegation against YCPD in the present case, nor has the

Plaintiff alleged that YCPD had a policy of allowing excessive force to be used by its officers during

the arrest of its citizens.7

“A plaintiff must identify the challenged policy, attribute it to the city itself, and show a

causal link between the execution of the policy and injuries suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). The law is clear that liability will not be imposed

under § 1983 on a respondeat superior or vicarious liability theory. See Colburn v. Upper Darby

Twp., 946 F.2d 1017, 1027 (3d Cir. 1991).

“Policy is made when a ‘decisionmaker possess[ing] final authority to establish municipal

policy with respect to the action issues an official proclamation, policy or edict. A course of

conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state

officials [are] so permanent and well settled’ as to virtually constitute law.” Beck v. City of

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews v. City of Philadelphia, 895 F.2d

1469, 1480 (3d Cir. 1990) (citations omitted).

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 7 of 11
8

The Court in Stoneking v. Bradford Area School District, 882 F.2d 720, 725 (3d Cir. 1989),

held that liability for state officials can arise “from their policies maintained in deliberate

indifference to action taken by their subordinates.” According to Stoneking, “a plaintiff must do

more than show the defendant could have averted her injury and failed to do so. In order to

establish liability a plaintiff must demonstrate both that the defendant’s policy, practice, or custom

played an affirmative role in bringing about the [harm] and that the defendant acted with deliberate

indifference to that [harm]. In order to establish deliberate indifference on the part of the

defendant, ‘something more culpable [must be shown] than a negligent failure to recognize [a] high

risk of harm’ to plaintiffs.” Id.; Black by Black v. Indiana Area School District, 985 F.2d 707, 712-13

(3d Cir. 1993) (quoting Colburn, 946 F.2d at 1025).

Defendant YCPD is entitled to dismissal as a matter of law on the Plaintiff’s § 1983 claim

under a policy, practice, or custom theory of liability. The Plaintiff does not raise a single allegation

that YCPD had an official policy or custom adopted by a final decision maker to allow its officers

to use excessive force during the arrests of its citizens. Nor has Plaintiff claimed that YCPD was

aware of such incidents in the past. Additionally, the Plaintiff has not alleged that YCPD acted with

deliberate indifference to any harm of Plaintiff as a result of his alleged excessive force claim. 

Thus, the Plaintiff has not alleged any unconstitutional conduct which was the result of a policy,

practice, or custom of YCPD within the meaning of § 1983. Since Plaintiff has already been given

an opportunity to amend his pleading in order to state a claim against any Defendants, Defendant

YCPD should be dismissed. 

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 8 of 11
9

Therefore, it will be recommended that his action proceed with respect to the Fourth

Amendment excessive force claim against Defendants Ross and Hansel, and that it be dismissed

as against Defendant YCPD. 

V. RECOMMENDATION. 

Based on the foregoing, we respectfully recommend that this action proceed with respect

to the Fourth Amendment excessive force claim against Defendants Ross and Hansel, and that it

be dismissed as against Defendant YCPD. It is also recommended that this case be remanded to

the undersigned for further proceedings against the remaining Defendants. 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: December 15, 2005 

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 9 of 11
10

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

REGINALD STUCKEY, : CIVIL ACTION NO. 4:CV-05-2354

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Blewitt)

:

TODD A. ROSS, et al., :

:

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated December 15, 2005. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 10 of 11
11

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: December 15, 2005 

Case 4:05-cv-02354-JFM Document 8 Filed 12/15/05 Page 11 of 11