Gelbutis v. Shenandoah Police Department

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RANDY GELBUTIS,

Plaintiff CIVIL ACTION NO. 3:17-CV-1057

(MUNLEY, J.)

v. (MEHALCHICK, M.J.)

SHENANDOAH POLICE DEPARTMENT,

et al,

Defendant

REPORT AND RECOMMENDATION

This is a civil rights action, initiated by pro se Plaintiff Randy Gelbutis upon the filing of

the initial complaint on June 16, 2017. (Doc. 1). Presently before the Court is a motion for

summary judgment filed by the remaining Defendant in this matter, Officer John Buchinsky

(“Officer Buchinsky”). (Doc. 59). For the reasons contained in this Report and

Recommendation, it is recommended that this motion be GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Randy Gelbutis (“Plaintiff” or “Gelbutis”) filed the initial complaint in this

matter, along with a motion to proceed in forma pauperis, 1 on June 16, 2017.2 (Doc. 1; Doc. 2).

Gelbutis named as Defendants the Shenandoah Police Department, Officer Buchinsky, the

1 The Court granted Plaintiff’s motion to proceed in forma pauperis on October 16, 2017.

(Doc. 13, at ¶ 1).

2 At the time he filed the original complaint, Gelbutis was incarcerated at the State

Correctional Institution at Mahanoy (“SCI-Mahanoy”). (Doc. 1, at 1)

Schuylkill County Department of Adult Probation and Parole, Parole Officer Erica Cola, and

Parole Officer Brian Shannon. (Doc. 1, at ¶¶ 3-7). Defendants filed a motion to dismiss for

failure to state a claim on December 7, 2017. (Doc. 18). While Defendants’ motion to dismiss

was still pending, Plaintiff filed an amended complaint. (Doc. 21).

Gelbutis alleges that Officer Buchinsky, an officer with the Shenandoah Police

Department, Parole Officer Erica Cola (“Officer Cola”), and Parole Officer Brian Shannon

(“Officer Shannon”), came to Gelbutis’s home on September 21, 2015. (Doc. 21, at ¶¶ 4; 8). An

altercation ensued and resulted in Plaintiff being thrown to the ground and ultimately

handcuffed. (Doc. 21, at ¶¶ 13-15; 18). While the altercation was on-going, Officer Buchinsky

allegedly pushed Plaintiff from his porch railing “with extreme force” and then stepped on his

neck, causing Plaintiff a great deal of pain. (Doc. 21, at ¶¶ 14-17). Gelbutis brought civil rights

claims against all Defendants, alleging that their respective applications of force, and

subsequent failure to provide him with medical treatment, violated his Eighth Amendment

rights. (Doc. 21, at ¶¶ 20-21).

On January 3, 2018, Officer Cola, Officer Shannon, and the Schuylkill County

Department of Adult Probation and Parole (collectively, the “Parole Defendants”) filed a

motion to dismiss the amended complaint. (Doc. 27). On January 16, 2018, the Shenandoah

Police Department and Officer Buchinsky (collectively, the “Police Defendants”) filed a motion

to dismiss Plaintiff’s amended complaint in part. (Doc. 31). The Police Defendants sought

dismissal of Plaintiff’s Eighth Amendment medical care claim but not his excessive force claim

asserted against Officer Buchinsky. (Doc. 31, at ¶ 5). On August 6, 2018, the undersigned

recommended the motions to dismiss filed by the Parole Defendants and the Police Defendants

2

be granted on the basis of sovereign immunity and for failure to state a claim. (Doc. 51, at ¶¶ 1-

5). The District Court adopted the Report and Recommendation on August 27, 2018. (Doc. 53,

at ¶¶ 1-7). The only remaining claim is the excessive force claim brought against Officer

Buchinsky. (Doc. 51, at 11).

On January 9, 2019 , Officer Buchinsky filed the instant motion for summary judgment

(Doc. 59), together with a statement of facts (Doc. 60) and brief in support (Doc. 61). Officer

Buchinsky moves for summary judgment on the bases that no genuine issue of material fact

exists that precludes judgment in his favor, and further, that he is entitled to qualified

immunity. (Doc. 61, at 16). Gelbutis has not filed a brief in opposition or responsive statement

of facts, despite being granted multiple extensions of time to do so. (Doc. 63; Doc. 64; Doc. 65;

Doc. 69; Doc. 71). As the time allowed for response under the Local Rules, and as extended by

Court Order, has expired, the instant motion for summary judgment is ripe for review.

II. STATEMENT OF MATERIAL FACTS

The undisputed facts3 pertinent to Officer Buchinsky’s motion for summary judgment

are as follows.

3 Pursuant to Local Rule 56.1, a nonmovant should (1) clearly and unequivocally admit

or deny whether each fact contained in movant’s statement of facts is undisputed and/or

material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3)

provide a citation to the part of the record that supports any such denial. Occhipinti v. Bauer,

3:13-CV-1875, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016) (emphasis added); Park v.

Veasie, No. 3:09–CV–2177, 2011 WL 1831708, at *4 (M.D. Pa. Mar. 11, 2011). Material facts

set forth in the statement required to be served by the moving party will be deemed to be

admitted unless controverted by the statement of facts required to be served by the opposing

party. Gelbutis has not filed any papers in opposition to Officer Buchinsky’s motion for

(footnote continued on next page)

3

A. FACTS REGARDING GELBUTIS’S PAROLE

At the time of the events leading to his claim in this matter, Gelbutis was on state parole

stemming from a conviction for Driving Under the Influence. (Doc. 60, at ¶ 4). His conditions

of parole included refraining from assaultive behavior and abstaining from the use of controlled

substances within the meaning of the Controlled Substance, Drug, Device and Cosmetic Act.

(Doc. 60, at ¶ 6). On August 9, 2013, Gelbutis reported to the Schuylkill County Probation and

Parole Office (“Probation Office”), at which time he appeared agitated and had “a line of

meth” before meeting with Officer Cola. (Doc. 60, at ¶¶ 7-8).

At the Probation Office, Gelbutis yelled at Officer Cola. (Doc. 60, at ¶ 9). Gelbutis also

tested positive for methamphetamine. (Doc. 60, at ¶ 10). As per the conditions of his parole,

Gelbutis was taken into custody, which he resisted. (Doc. 60, at ¶¶ 6; 9-11).

B. FACTS REGARDING THE EVENTS OF SEPTEMBER 21, 2015

On the day of the incident giving rise to this action, Gelbutis resided at 310 North Jardin

Street, Shenandoah, Pennsylvania. (Doc. 60, at ¶1). Officer Buchinsky was employed as a

police officer with the Shenandoah Borough Police Department. (Doc. 60, at ¶2). On

summary judgment. As such, the Court deems the statement of facts submitted by Officer

Buchinsky to be admitted. See Local Rule 56.1. Gelbutis’s failure to respond to the present

motion does not mean that Officer Buchinsky is automatically entitled to summary judgment.

See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). The

above-mentioned local rule must be construed and applied in a manner consistent with Rule 56

of the Federal Rules of Civil Procedure. See Anchorage Assocs., 922 F.2d at 174. Thus, Officer

Buchinsky must still establish that, based on the facts set forth in support of its motion, he is

entitled to judgment as a matter of law regarding Gelbutis’s excessive force claim. See Anchorage

Assocs., 922 F.2d at 175–76; see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993).

4

September 21, 2015, Gelbutis’s son called Officer Cola to the North Jardin Street residence,

reporting strange behavior by Gelbutis, and asking that he be administered a drug test. (Doc.

60, at ¶¶ 12- 14).

Officer Cola and Officer Shannon went to Gelbutis’s residence in response to the call.

(Doc. 60, at ¶ 14). Concerned that Gelbutis may be combative and aggressive, as he had been

during the August 2013 incident, Officer Cola had Officer Buchinsky meet them at Gelbutis’s

residence. (Doc. 60, at ¶¶ 9-11; 15-16). When the Officers arrived at his residence, Gelbutis was

waiting on the porch by a rocking chair and appeared agitated. (Doc. 60, at ¶¶ 17-18). Officer

Cola believed Gelbutis to be under the influence of methamphetamine and ordered Gelbutis to

submit to a urine test to screen for drug use. (Doc. 60, at ¶¶ 19-20; 22).

Officer Buchinsky and Officer Shannon ushered Plaintiff into his residence to complete

the test. (Doc. 60, at ¶ 21). Gelbutis, Officer Cola, Officer Shannon, and Officer Buchinsky

returned to the porch area after Gelbutis completed the test. (Doc. 60, at ¶ 23). Officer Cola

determined the urine sample tested positive for methamphetamine, and informed Gelbutis of

the same. (Doc. 60, at ¶¶ 26-27). Gelbutis grew agitated, stated the sample was not his,

requested another drug test, and then refused to submit another urine sample. (Doc. 60, at ¶¶

28-29).

Officer Cola then directed Gelbutis to stand up and put his hands behind his back. (Doc.

60, at ¶ 31). Gelbutis stood up, but immediately lunged over his porch railing, grabbing the

sample, and splashing it on Officer Cola and Officer Shannon. (Doc. 60, at ¶¶ 32-35). Officer

Cola and Officer Buchinsky continued to struggle with Gelbutis, and Gelbutis pushed Officer

Cola, causing her to fall face first into a rocking chair. (Doc. 60, at ¶¶ 36-37). While Officer

5

Buchinsky and Gelbutis continued to grapple with each other, and Gelbutis fell over his porch

railing. (Doc. 60, at ¶¶ 38-39).

After falling, Gelbutis started walking away from the residence, and he threw the empty

urine sample into the street. (Doc. 60, at ¶¶ 40-41). Neither Officer Cola nor Officer Shannon

observed any physical contact between Officer Buchinsky and Gelbutis after Gelbutis fell over

his porch railing. (Doc. 60, at ¶ 49). Officer Shannon pursued Gelbutis to the ground, at which

point the officers ordered Gelbutis to stop resisting and put his hands behind his back. (Doc. 60,

at ¶¶ 42-43). Gelbutis did not comply with these commands and kept his arms underneath his

body. (Doc. 60, at ¶ 44). According to Gelbutis’s sworn testimony, his arms were in front of

him at this point and Officer Buchinsky came up and was standing on Gelbutis’s neck and he

couldn’t move. (Doc. 60-2, at 13). Officer Cola warned Gelbutis that he would be tasered if he

did not submit to arrest, at which point Gelbutis complied and was handcuffed. (Doc. 60, at ¶¶

45-48).

Officer Cola and Officer Shannon transported Gelbutis to the Probation Office. (Doc.

60, at ¶ 52). Officer Buchinsky had no further involvement with Gelbutis after his transport to

the Probation Office (Doc. 60, at ¶ 53).

On September 30, 2015, Officer Buchinsky charged Gelbutis with (1) Aggravated

Harassment by Prisoner; (2) Resisting Arrest; (3) Tampering With/Fabricating Physical

Evidence; (4) Obstruction of Justice; and (5) Disorderly Conduct Engaging in Fighting. (Doc.

60, at ¶ 58). On October 17, 2016 Gelbutis entered a nolo contendere plea to the charges of: (1)

Resisting Arrest, (2) Tampering With/Fabricating Physical Evidence, (3) Obstruction of

6

Justice, (4) Disorderly Conduct Engaging in Fighting, and (5) Simple Assault. (Doc. 60, at ¶

59).

C. FACTS REGARDING GELBUTIS’S METHAMPHETAMINE AND MEDICATION USE,

AND ITS IMPACT ON HIS MEMORY OF THE SEPTEMBER 21, 2015 INCIDENT

In a September 25, 2015 conversation with Officer Cola, Gelbutis stated that he used a

“line of meth” on September 19, 2015. (Doc. 60, at ¶ 60). At a parole hearing on November 19,

2015, Gelbutis again admitted to using methamphetamines on September 19, 2015. (Doc. 60, at

¶ 61). In his December 6, 2018 deposition, Gelbutis testified that he believed he “did… a line of

meth” on September 19, 2015, and that this probably caused his positive urine sample. (Doc.

60, at ¶¶ 65-66). Gelbutis testified that he was paranoid on September 21, 2015, a state which

may cause him to not understand what is going on around him. (Doc. 60, at ¶ 68).

Gelbutis also stated in his deposition that using methamphetamines sometimes causes

gaps in his memory, and that there could have been gaps in his memory about the September

21, 2015, incident. (Doc. 60, at ¶¶ 63-64). Gelbutis also testified that he took a “double dose” of

his prescribed medications—Celexa for depression and Risperdal for psychotic and delusional

behavior— on September 21, 2015, which may have further impaired his memory that day.

(Doc. 60, at ¶¶ 71-73).

III. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect

the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of

7

material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict

for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion,

all inferences “should be drawn in the light most favorable to the non-moving party, and where

the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be

taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need

not accept mere conclusory allegations, whether they are made in the complaint or a sworn

statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). In deciding a motion for

summary judgment, the court’s function is not to make credibility determinations, weigh

evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must

simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The Third Circuit emphasized that, “although the party opposing summary judgment is

entitled to the ‘benefit of all factual inferences in the court's consideration of a motion for

summary judgment, the nonmoving party must point to some evidence in the record that

creates a genuine issue of material fact.’”4 Velentzas v. U.S., No. 4: CV-07-1255, 2010 WL

4 See also Beenick v. LeFebvre, 684 F. App’x 200, 206 (3d Cir. 2017) (stating the purpose of

requiring parties to cite to particular parts of the record in their briefs on summary judgment is

(footnote continued on next page)

8

3896192, at *7 (M.D. Pa. Aug. 31, 2010) (quoting Goode v. Nash, 241 F. App’x 868, 868 (3d Cir.

2007)) (non-precedential). The opposing party “‘cannot rest solely on assertions made in the

pleadings, legal memorandum, or oral argument.’” Velentzas, 2010 WL 3896192, at *7 (quoting

Goode, 241 F. App’x at 868). “Rule 56(c) mandates the entry of summary judgment…against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986) (citing Fed. R. Civ. P. 56).

B. CLAIMS BROUGHT UNDER 42 U.S.C. § 1983

Plaintiff’s operative complaint asserts federal civil rights claim pursuant to 42 U.S.C. §

1983. Section 1983 provides a private cause of action with respect to violations of federal

constitutional rights. The statute provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

Section 1983 does not create substantive rights, but instead provides remedies for rights

established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983

claim, a plaintiff must demonstrate that the defendants, acting under color of state law,

to “assist the court in locating materials buried in a voluminous record”) (quoting Fed. R. Civ.

P. 56(c)(1)(A)).

9

deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of

Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).

C. EXCESSIVE FORCE CLAIM

Officer Buchinsky moves for summary judgment on Gelbutis’s excessive force claim,

asserting that there is no genuine issue of material fact that his use of force was reasonable. The

Fourth Amendment protects “[t]he right of the people to be secure in their persons… against

unreasonable… seizures.” (U.S. Const. amend. IV).5 “A police officer's ‘use of force

contravenes the Fourth Amendment if it is excessive under objective standards of

reasonableness.’” Brogan v. Tunkhannock Twp., 302 F. Supp. 3d 670, 676 (M.D. Pa. 2018)

5 Gelbutis brings his excessive force claim pursuant to the Eighth Amendment. (Doc.

21). “While the Eighth Amendment prohibits the infliction of cruel and unusual punishment

upon prisoners, it applies only ‘after [the State] has secured a formal adjudication of guilt in

accordance with due process of law.’” Natale v. Camden County Corr. Facility, 318 F.3d 575, 581

(3d Cir. 2003) (quoting City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 244 (1983)); see

also Whitley v. Albers, 475 U.S. 312, 318–326 (1986) (finding that a claim of excessive force to

subdue convicted prisoner is properly analyzed under the Eighth Amendment). Conversely,

when an “excessive force claim arises in the context of an arrest or investigatory stop of a free

citizen, it is most properly characterized as one invoking the protections of the Fourth

Amendment . . . ” Graham v. Connor, 490 U.S. 386, 394 (1989); see also Tennessee v. Garner, 471

U.S. 1, 7–22 (1985) (finding that a claim of excessive force to effect arrest is analyzed under the

Fourth Amendment). Generally, excessive force claims brought under the Fourth Amendment

are not barred by the favorable termination rule articulated in Heck v. Humphrey, 512 U.S. 477

(1994); see Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997). Gelbutis’s excessive force

claim is thus properly analyzed under the Fourth Amendment standard. See Nelson, 109 F.3d at

145 (holding that an excessive force claim stemming from the arrest of a parole violated arose

under the Fourth Amendment and was not affected by the plaintiff’s parole status); see also

Anderson v. Dauphin Cty. Adult Prob. Office, No. 1:15-CV-00878, 2016 WL 769278, at *3 (M.D.

Pa. Jan. 25, 2016), report and recommendation adopted, No. 1:15-CV-878, 2016 WL 759162 (M.D.

Pa. Feb. 26, 2016) (liberally construing pro se plaintiff’s Eighth Amendment excessive force

claim as a Fourth Amendment excessive force claim).

10

(quoting Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002)). “The test of reasonableness under

the Fourth Amendment is whether under the totality of the circumstances, ‘the officers' actions

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

regard to their underlying intent or motivations.’” Fulks ex rel. Daniel v. Gasper, 439 F. Supp. 2d

372, 376 (M.D. Pa. July 13, 2006) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

Further, reasonableness must be evaluated from the ‘perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.’” Brogan, 302 F. Supp. 3d at 676 (quoting

Graham, 490 U.S. at 396).

If the district court concludes, after resolving all factual disputes in favor of the plaintiff,

that the officer's use of force was objectively reasonable under the circumstances, then summary

judgment in the officer’s favor may be warranted. See Gasper, 439 F. Supp. 2d at 377 (citing

Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999)). The court must consider the severity of the

crime at issue, whether the suspect posed an immediate threat to the safety of the officers or

others, and whether he actively was resisting arrest or attempting to evade arrest by flight. Ball v.

Twp. of Silver Spring, 833 F. Supp. 2d 415, 420 (M.D. Pa. 2011) (quoting Kopec v. Tate, 361 F.3d

772, 776–77 (3d Cir. 2004)); see also Brown v. Culp, No. 1:11–CV–1734, 2013 WL 4041571, at *8

(M.D. Pa. Aug. 8, 2013) (quoting Graham, 490 U.S. at 390). Additionally, courts may consider

the possibility that the persons subject to the police action are violent or dangerous or possibly

armed, whether the action takes place within the context of effecting an arrest, the number of

people who police must contend with at one time, and the duration of the action. Ball, 833 F.

Supp. 2d at 420; Kopec, 361 F.3d at 776–77). The determination of reasonableness allows for the

fact that police officers are often forced to make split-second judgments – in circumstances that

11

are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a

particular situation. Brogan, 302 F. Supp. 3d at 676 (quoting Graham, 490 U.S. at 396-97).

Finally, the Court must view the totality of the circumstances surrounding the

September 21, 2015 incident in the light most favorable to Gelbutis, the non-movant. Pastore v.

Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994); Gasper, 439 F. Supp. 2d at 376. Gelbutis

complains of two occasions where Officer Buchinsky applied force to him – when Officer

Buchinsky allegedly pushed him off his porch (Doc. 21, at ¶ 14), and when Officer Buchinsky

allegedly stepped on his neck. (Doc. 21, at ¶¶ 16-17).

1. Porch Fall

The undisputed record establishes that Officer Buchinsky arrived at Gelbutis’s residence

at the request of Officer Cola, because Officer Cola suspected Gelbutis might be combative and

aggressive. (Doc. 60, at ¶¶ 9-11; 15-16). Officer Cola suspected this because Gelbutis’s son had

called the police, reported that Gelbutis was acting strange, and asked them to conduct a drug

test. (Doc. 60, at ¶¶ 12-13). Officer Cola’s recollection of the August 2013 altercation with

Gelbutis at the Probation Office also served to increase her suspicion. (Doc. 60, at ¶¶ 7-8).

During that August 2013 altercation, Gelbutis tested positive for methamphetamine, yelled at

Officer Cola, and resisted being taken into custody. (Doc. 60, at ¶¶ 9-11).

When Officer Buchinsky and Officer Cola arrived at Gelbutis’s residence on September

21, 2015, Gelbutis was waiting on the porch beside a rocking chair and appeared agitated.

(Doc. 60, at ¶¶ 17-18). Officer Cola believed Gelbutis to be under the influence of

methamphetamine. (Doc. 60, at ¶¶ 19-20; 22). During the encounter, Gelbutis tested positive

for methamphetamine and Officer Cola attempted to secure Gelbutis, instructing him to stand

12

up and put his hands behind his back.6 (Doc. 60, at ¶¶ 26; 31). Gelbutis instead lunged toward

the urine sample, ultimately splashing the bodily fluid on the officers while attempting to

destroy the sample, and then pushed Officer Cola into a rocking chair face first. (Doc. 61, at

17). Gelbutis fell over his porch railing, but was unable to testify who purportedly pushed him

over the railing. (Doc. 60, at ¶¶ 38-39).

The undisputed facts in the record establish that Gelbutis actively resisted arrest and

refused to comply with the officers’ commands. Further, the undisputed record establishes that

Gelbutis became increasingly agitated, exposed the officers to his bodily fluids, and pushed

Officer Cola into a rocking chair, demonstrating a threat to officer safety. Moreover, the

altercation occurred in the context of effecting an arrest. Even viewing these facts in a light most

favorable to Gelbutis as the non-movant, and even assuming it was Officer Buchinsky who

pushed him, there is no dispute of material fact regarding the reasonableness of the force

employed by Officer Buchinsky under the circumstances at the time that Gelbutis fell off the

porch. See Brown, 2013 WL 4041571, at *8 (quoting Graham, 490 U.S. at 390); Ball, 833 F.

Supp. 2d at 420 (quoting Kopec, 361 F.3d at 776–77); Brogan, 302 F. Supp. 3d at 676.

6 Per the conditions of Gelbutis’s parole, his use of a controlled substance within the

meaning of the Controlled Substance, Drug, Device and Cosmetic Act would result in a

detention in a county prison. (Doc. 60-3, at ¶ 7; 5). Methamphetamine is a prohibited substance

under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. § 780-

104(1); Com. v. Rodriguez, 548 A. 2d 1211, 1212 (Pa. 1988). Gelbutis’s drug test showed a

positive result for methamphetamine, i.e. a prohibited substance. Thus, Gelbutis faced

detention in a county prison, which tends to show the severity of his crime. See Ball, 833 F.

Supp. 2d at 420 (quoting Kopec, 361 F.3d at 776–77).

13

2. Neck Restraint

Gelbutis also alleges that Officer Buchinsky employed excessive force when he stepped

on his neck. (Doc. 21, at ¶¶ 16-17). In support of his motion for summary judgment on this

claim, Officer Buchinsky submits declarations of Officer Cola and Officer Shannon, which state

that they did not observe any physical contact between Officer Buchinsky and Gelbutis after his

fall. (Doc. 60, at ¶ 49). Officer Buchinsky submits that there is no evidence in the record to

support Gelbutis’s claim that Officer Buchinsky continued to use unreasonable force against

Gelbutis by stepping on his neck. (Doc. 61, at 17-18).

In his declaration, Officer Cola affirms that “at no point during the struggle did Officer

Buchinsky place his feet on any part of [Plaintiff’s] body,” nor did he “have any physical

contact with [Plaintiff] after he fell over the railing.” (Doc. 60-4, at ¶ 42-43). Officer Shannon

provided substantially similar testimony, stating that at no point were Officer Buchinsky’s feet

in contact with Gelbutis’s person. (Doc. 60-7, at ¶ 32). Officer Shannon also declares that there

was no contact between Officer Buchinsky and Gelbutis after he fell over the railing. (Doc. 60-

7, at ¶ 33). However, in his December 6, 2018 deposition, Gelbutis testified that Officer

Buchinsky stood on his neck, after Officer Cola had already pinned him to the ground, thereby

causing Gelbutis to scream in pain. (Doc. 60-2, at 13 pp. 51). Officer Buchinsky submits that

Gelbutis’s testimony does not create a genuine dispute of material fact, as his recollection of the

events of September 21, 2015 is “so inconsistent as to be wholly unreliable.” (Doc. 61, at 8; 17-

18). Officer Buchinsky further submits that, even if he had placed his foot on Gelbutis’s neck, he

is still entitled to summary judgment. (Doc. 61, at 19).

14

Gelbutis’s deposition testimony indicates that he was pinned to the ground when Officer

Buchinsky stepped on his neck, and that his arms were out in front of him, and that he was

unable to move. (Doc. 60-2, at 13 pp. 51-52). This is in direct conflict to Defendants’ statement

that Gelbutis kept his hands and arms underneath his body to prevent the officers from

handcuffing him (Doc. 60, at ¶¶ 44-47), and creates a dispute of material fact. See Ball, 833 F.

Supp. 2d at 420 (citing Kopec, 361 F.3d at 776–77).

Further, Officer Buchinsky’s challenges to Gelbutis’s memory and credibility are factual

issues for the jury to decide, rather than the Court on a motion for summary judgment. See Vega

v. Chief Matthew Nestor, No. 4:06-cv-2287, 2012 WL 13162666, at *3 (M.D. Pa. Feb. 16, 2012)

(overruling defendant’s objection to denial of summary judgment motion where defendant

argued witness’s “statements [were] uncorroborated, and thus should be discredited” because

“neither the credibility of [witness]'s statement nor the weight that should be accorded thereto,

are before this [c]ourt on a motion for summary judgment”). As discussed above, viewing the

record in the light most favorable to Gelbutis, a reasonable jury could conclude Officer

Buchinsky’s stepping on his neck was an excessive use of force, contrary to the Fourth

Amendment. As such, the Court recommends denying Officer Buchinsky’s motion for

summary judgment regarding Gelbutis’s excessive force claim arising from Officer Buchinsky

stepping on his neck.

15

D. QUALIFIED IMMUNITY7

Finally, Officer Buchinsky raises the affirmative defense of qualified immunity in his

motion for summary judgment. Qualified immunity provides not merely a “defense to

liability,” but rather “immunity from suit.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).

Specifically, “[q]ualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). An official who reasonably believes his conduct

to be lawful is thus protected, as qualified immunity provides “ample room for mistaken

judgments by protecting all but the plainly incompetent or those who knowingly violate the

law.” Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir. 2010); see also Hope v. Pelzer, 536 U.S.

730, 739 (2002) (“[Q]ualified immunity operates to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful” (internal quotation marks omitted)).

The Supreme Court “repeatedly ha[s] stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232

(2009). Further, “lower courts have discretion to decide which of the two prongs of qualified-

immunity analysis to tackle first.” al-Kidd, 131 S. Ct. at 2080; see also Pearson, 555 U.S. at 236

(“[D]istrict courts…should be permitted to exercise their sound discretion in deciding which of

7 As the Court has already found that summary judgment should be entered in favor of

Officer Buchinsky on the excessive force claim arising from Gelbutis’s fall off the porch, it will

only consider whether Officer Buchinsky is entitled to qualified immunity on the excessive form

claim arising from Gelbutis’s claim of him standing on his neck.

16

the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.”). Here, Officer Buchinsky primarily challenges

whether the conduct of which Gelbutis complains violated a clearly established right. (Doc. 61).

Further, as discussed supra, factual disputes exist that may result in a jury finding that Officer

Buchinsky violated Gelbutis’s constitutional rights. As such, the Court will consider the second

prong of the qualified immunity analysis first. See al-Kidd, 131 S. Ct. at 2080.

“A right is ‘clearly established’ if a reasonable actor under the circumstances would have

known that his or her conduct impinged upon constitutional mandates.” Broadwater v. Fow, 945

F. Supp. 2d 574, 585 (M.D. Pa. 2013). A right may be clearly established without “a case

directly on point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” al-Kidd, 131 S. Ct. at 2083. “In determining whether a right has been

clearly established, the court must define the right allegedly violated at the appropriate level of

specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012); see also al–Kidd, 131 S.Ct. at

2084 (“We have repeatedly told courts ... not to define clearly established law at a high level of

generality. The general proposition, for example, that an unreasonable search or seizure violates

the Fourth Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established.”) (citations omitted). As such, “[t]he dispositive question is

‘whether the violative nature of particular conduct is clearly established.’” Mullenix v. Luna, 136

S.Ct. 305, 308 (2015) (emphasis in original) (quoting al–Kidd, 131 S.Ct. at 2084). The

appropriate inquiry is whether the Constitution prohibited the officer’s conduct in the situation

the officer confronted. Mullenix, 136 S.Ct. at 308 (citing Brosseau, 543 U.S. at 198, 125 S.Ct.

596). As noted supra, it is clear that an officer’s use of force is excessive and contravenes the

17

Fourth Amendment when it is objectively unreasonable under the circumstances. See Graham,

490 U.S. at 396-97, 109 S.Ct. 1865. It is equally clear that Graham and other cases articulating

the objective reasonableness standard “do not by themselves create clearly established law

outside an ‘obvious case.’ ” Randolph-Ali v. Minium, No. 1:16-CV-1625, 2019 WL 1299195, at

*5 (M.D. Pa. Mar. 21, 2019) (quoting Kisela v. Hughes, 584 U.S. ––––, 138 S.Ct. 1148, 1152, 200

L.Ed.2d 449 (2018) (per curiam)(internal citations omitted)). Specificity is particularly important

in the Fourth Amendment context, where “it is sometimes difficult for an officer to determine

how the relevant legal doctrine ... will apply to the factual situation the officer confronts.” Kisela

at 1152-53 (quoting Mullenix, 136 S.Ct. at 308). Because that line between acceptable force and

excessive force can be difficult to discern, an officer is entitled to qualified immunity absent

existing precedent which “ ‘squarely governs’ the specific facts at issue” and adequately notifies

the officer that a specific use of force is unlawful. Kisela, 138 S.Ct. at 1153 (quoting Mullenix,

136 S.Ct. at 309, 312).

Gelbutis, in failing to respond at all to Defendant’s motion for summary judgment, has

not identified any judicial decision, either precedential or persuasive, which would indicate to

law enforcement that Officer Buchinsky’s conduct was so egregious as to constitute an obvious

case for qualified immunity purposes. Further, Fourth Amendment jurisprudence recognizes

that some degree of physical force or coercion may be necessary to effect an arrest. Randolph-

Ali, 2019 WL 1299195 at *6; Graham, 490 U.S. at 396. Physically subduing. A reasonable police

officer in the situation confronting Officer Buchinsky would not have believed that attempting

to gain Gelbutis’s compliance in this manner would violate clearly established law. As such,

18

Officer Buchinsky is entitled to summary judgment on the Gelbutis’s excessive force claim

arising out of Officer Buchinsky stepping on his neck.

IV. CONCLUSION AND RECOMMENDATION

In sum, it is recommended that the Court GRANT Officer Buchinsky’s Motion for

Summary Judgment (Doc. 59). Specifically, it is recommended that summary judgment be

granted on Gelbutis’s excessive force claim related to his fall off the porch, as there is not

genuine issue of material fact in the record such that a reasonable jury could return a verdict for

Gelbutis on this claim. As to Gelbutis’s claim of excessive force related to Officer Buchinsky’s

restraint of him on the ground, it is recommended that the Court find that Officer Buchinsky is

entitled to qualified immunity on this claim, and judgment be entered in his favor. Finally, it is

recommended that the Clerk of Court be directed to CLOSE this case.

Dated: August 23, 2019 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

19

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RANDY GELBUTIS,

Plaintiff CIVIL ACTION NO. 3:17-CV-1057

v. (MUNLEY, J.)

(MEHALCHICK, M.J.)

SHENANDOAH POLICE DEPARTMENT,

et al,

Defendant

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report

and Recommendation dated August 23, 2019.

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 fourteen (14) 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 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.

Dated: August 23, 2019 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge