MILEHAM v. BOROUGH OF BRIDGEWATER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID MILEHAM,

Plaintiff, Civil Action No. 2:20-cv-116

Vv. Hon. William S. Stickman IV

JEREMY CONLEY, an individual, and

NATHAN SWIERKOSZ, an individual, and

PAUL SMITH, an individual,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff David Mileham (“Mileham”) brought an action against Defendants Jeremy

Conley (“Conley”) and Nathan Swierkosz (“Swierkosz”’) (collectively, “Defendants”), both

officers of the Bridgewater Police Department, asserting a Fourth Amendment excessive force

claim under 42 U.S.C. § 1983 and state law claims of assault and battery. (ECF No. 37).

Defendants moved for summary judgment, arguing that they are shielded by qualified immunity

and, alternatively, that Mileham failed to demonstrate that they violated the Fourth Amendment

and/or committed an assault and battery. (ECF No. 89). The Court is required to view the

claims against Defendants in light of their own individual conduct. For the reasons set forth

below, the Court will grant summary judgment in favor of Swierkosz. Because the Court holds

that Conley is not protected by qualified immunity and that genuine issues of material fact exist

as to whether he violated the Fourth Amendment and/or committed state law torts, summary

judgment is not appropriate. The case against Conley will proceed to trial.’

J. STANDARD OF REVIEW

Summary judgment is warranted if the Court is satisfied 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(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it

must be decided to resolve the substantive claim or defense to which the motion is directed. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Further, there is a genuine dispute of

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

nonmoving party.” Jd. The Court must view the evidence presented in the light most favorable

to the nonmoving party. Id. at 255. It refrains from making credibility determinations or

weighing the evidence. Jd. “[R]eal questions about credibility, gaps in the evidence, and doubts

as to the sufficiency of the movant’s proof” will defeat a motion for summary judgment. £/ v.

Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007). □

II. FACTUAL BACKGROUND

Almost everything relating to the encounter between Defendants and Mileham is

vehemently disputed. In other words, the parties present very few material facts that are

undisputed. The Court will address the areas of agreement between the parties as well as those

in dispute.

The parties agree that Defendants first encountered Mileham in a parking lot adjacent to

the Bridgewater Landing Marina (the “Marina”). (ECF No. 91, 3-4); (ECF No. 98, {| 3-4).

' This Memorandum Opinion is limited to the motion filed by Conley and Swierkosz. Defendant

Paul Smith’s Motion for Summary Judgment (ECF No. 86) will be addressed in a separate

opinion.

It is not disputed that—notwithstanding different backstories—Mileham introduced himself to

Defendants as “Crazy Dave.” (ECF No. 91, § 5); (ECF No. 98, 5, 51). Defendants assert that

Mileham showed signs of intoxication, but Mileham contends that he consumed only one drink

hours before the encounter. (ECF No. 91, § 6); (ECF No. 98, §{] 6, 42). Although the parties

dispute when he acquired it (with respect to their encounter), it is undisputed that Mileham had a

“propane torch” or “Bunsen burner” in his possession. (ECF No. 91, 4 8); (ECF No. 98, 4 8,

46). There is also no dispute that Mileham did not provide his last name when asked. (ECF No.

91, 7 9; ECF No. 98, Jf 9, 52). At this point, Defendants recall that Conley informed Mileham

that he was under arrest. (ECF No. 91, 4 10). Mileham counters that he was never informed that

he was under arrest. (ECF No. 98, {J 10, 55).

The next stage of the interaction between the parties occurred on a boat docked at the

Marina, but the parties disagree about almost every detail. (ECF No. 91, § 11); (ECF No. 98, 4

11). Defendants contend that Mileham fled from them onto a boat, refused to disembark when

commanded, and threatened to blow it up if they boarded. (ECF No. 91, 10-12). They also

claim that they heard a female, later identified as Michelle Haley Ochsenhirt, on the boat. Ud. □

13). Mileham provides a different version of events, countering that Defendants did not pursue

him onto the boat nor order him to leave the boat. (ECF No. 98, J 11, 56). He also denies

threatening to light the boat on fire or blow it up. (/d § 12). Rather, Mileham claims that

Defendants boarded the boat and entered its cabin without warning. (Ud. J] 14, 57).

Defendants contend that a fight ensued between Conley and Mileham shortly after they

boarded the boat. (ECF No. 91, {§ 14-16). They recount that Swierkosz attempted to use his

taser on Mileham but that it failed to discharge because only one prong made contact with

Mileham’s body. (Ud § 16). Mileham denies that he fought Conley but agrees that one of

Defendants deployed their taser. (ECF No. 98, { 16). He does not deny Defendants’ contention

that only one prong made contact and that it was, therefore, ineffective. (id. § 16-17). There is

no dispute that Defendants ultimately handcuffed Mileham and seated him at the back of the

boat. (ECF No. 91, §§ 17-18); (ECF No. 98, 9] 17-18, 62-63).

The period after Mileham was handcuffed is also greatly contested. Defendants state that

Mileham screamed at the officers that he would not leave the boat, that he suddenly arose and hit

Swierkosz with his shoulder or elbow, and nearly forced Swierkosz into the Beaver River. (ECF

No. 91, §{ 19, 21). According to Defendants, Conley responded by tackling Mileham, who

kicked back and threatened to throw both officers into the river. Ud. §] 22, 23). Defendants

contend that they picked Mileham up and carried him onto the dock, where he then resumed

resisting arrest and attempted to roll into the river. Ud. J 24-25).

Mileham admits that he refused to leave the boat in handcuffs without donning a life

jacket but alleges that Conley, in response to Mileham’s objections, punched him in the head.

(ECF No. 98, 19-20, 67). In his version of events, Conley stepped onto the dock while

Swierkosz helped Mileham stand up from his seated, handcuffed position on the boat. (/d. {9 21,

70). Mileham claims that Conley’s movement caused the boat to rock, which knocked

Swierkosz off balance and almost caused him to fall into the Beaver River. (/d.) Then, Mileham

asserts that Conley reboarded the boat and punched him. (Ud. §{ 22, 72). He maintains that

Defendants deployed a second taser, which stunned him before the officers dragged him onto the

dock by his arms and legs. (Ud. 22, 24, 72). He denies kicking Defendants and threatening to

throw them in the river. (Id. J 23).

After moving him from the boat to the dock, Defendants contend that Conley punched

Mileham to subdue him. (ECF No. 91, 9 25-26). Conley called for backup and held Mileham

.

on the dock until additional officers arrived. (Id. § 27). Defendants assert that Mileham was

belligerent, loud, and continued to resist by dead-weighting himself. (Ud {| 30). Mileham

disputes this, contending that he lost consciousness from Conley repeatedly punching him until

backup officers arrived. (ECF No. 98, f§ 25-27). Although Mileham claims he had lost

consciousness, he agrees with Defendants that Swierkosz never struck him during the course of

the encounter. (ECF No. 91, § 28); (ECF No. 98, § 28).

Defendants recall that Mileham suddenly became compliant when he mistakenly believed

that an officer from another jurisdiction arrived. (ECF No. 91, § 31). Mileham admits that he

mistook the backup officer for someone else and subsequently complied. (ECF No. 98, § 31).

From that point, the parties agree that Mileham was transported to the hospital where he was

treated for contusions, and following his release, was transferred to jail. (ECF No. 91, § 35);

(ECF No. 98, § 35). Mileham contends that he received additional medical treatment for facial

trauma, abrasions, swelling, neck trauma, and back pain. (ECF No. 98, § 79). He states that his

head, face, and eyes were so swollen that he could not see for approximately two weeks. (Ud {|

80).

As a result of this encounter, Mileham was charged with aggravated assault, terroristic

threats, recklessly endangering another person, resisting arrest, disorderly conduct, and public

drunkenness. (ECF No. 91-3, pp. 2-4). He ultimately pled guilty to disorderly conduct. (ECF

No. 91-6, p. 2).

III. ANALYSIS

A defendant is only responsible for his own conduct under § 1983. In order to decide

whether summary judgment is appropriate, the Court must separately examine Mileham’s claims

against Conley and Swierkosz based on their individual actions. See Peroza-Benitez v. Smith,

994 F.3d 157, 165 (3d Cir. 2021) (citation omitted). The Court also must separately determine

whether there is a genuine issue of material fact as to either of their conduct with respect to

Mileham’s Fourth Amendment claim for unlawful force and whether either officer is entitled to

qualified immunity. Having done so, the Court holds that there are no genuine issues of material

fact about whether Swierkosz’s conduct violated the Fourth Amendment. The Court will grant

summary judgment in favor of Swierkosz on Mileham’s § 1983 claims. On the other hand, there

are genuine issues of fact as to whether Conley’s conduct was objectively unreasonable and,

therefore, violated the Fourth Amendment. Mileham’s § 1983 claims against Conley will

proceed to trial. The Court reaches the same conclusion with respect to Mileham’s state law

claims against each officer.

A. SUMMARY JUDGMENT IS WARRANTED ON MILEHAM’S § 1983 CLAIM

AGAINST SWIERKOSZ BUT NOT CONLEY.

In moving for summary judgment as to Mileham’s § 1983 claims, Defendants assert that

they are entitled to qualified immunity because they used reasonable force under the

circumstances. (ECF No. 90, pp. 5-12). Qualified immunity shields government officials,

including police officers, from liability for civil damages so long as “their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow y. Fitzgerald, 457 U.S. 800, 818 (1982); see also District of Columbia v.

Wesby, 583 U.S. 48, 62-63 (2018). To determine whether qualified immunity applies, the Court

must conduct a two-part inquiry, considering (1) whether Conley and/or Swierkosz violated a

constitutional right and (2) whether that right was clearly established. See E/ v. City of

Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020); see also Pearson v. Callahan, 555 U.S. 223, 236

(2009) (affording courts discretion to decide which step of the qualified immunity analysis to

address first). Defendants have the burden of establishing their entitlement to qualified

immunity. See Peroza-Benitez, 994 F.3d at 165. Taking the facts in a light most favorable to

Mileham, the non-moving party, the Court holds that a reasonable jury could find that Conley,

but not Swierkosz, violated Mileham’s Fourth Amendment right to be free from excessive force

and that such a right was clearly established at the time of the incident. Accordingly, Swierkosz

is protected by qualified immunity, but Conley is not. Thus, summary judgment will be granted

in favor of Swierkosz and denied as to Conley.

1. A reasonable jury could find that Conley, but_not_Swierkosz,

violated Mileham’s Fourth Amendment right to be free from

excessive force.

The first step of the qualified immunity analysis asks: “Taken in the light most favorable

to the party asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Mileham asserts that

Defendants used excessive force in violation of the Fourth Amendment, as applied to the states

by the Fourteenth Amendment.” (See ECF No. 97, pp. 3-7). Excessive force claims under the

Fourth Amendment require proof that “a seizure occurred and that it was unreasonable under the

circumstances.” E/, 975 F.3d at 336 (citation omitted); see also Abraham vy. Raso, 183 F.3d 279,

288 (3d Cir. 1999) (citing Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). There is no

question that a seizure occurred here. Defendants seized Mileham within the meaning of the

Fourth Amendment not only when they arrested him but also when Swierkosz attempted to use a

? Mileham brings this claim under § 1983, which provides a cause of action “for vindicating

federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 394 (1989) (citation

omitted). To obtain relief under § 1983, a plaintiff must show that he suffered “the violation of a

right secured by the Constitution and laws of the United States” and that “the alleged deprivation

was committed by a person acting under color of state law.” Harvey v. Plains Twp. Police

421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). There

is no dispute that Defendants acted under color of state law. The Court’s analysis focuses on the

former showing—the violation of a constitutional right—which dovetails with the first step of

the qualified immunity inquiry.

taser on him and when Conley otherwise forced him to the ground and subdued him. These

actions unquestionably constituted an “application of physical force to the body of a person with

intent to restrain.” Torres v. Madrid, 141 S. Ct. 989, 994 (2021). However, Defendants maintain

that the force employed against Mileham was reasonable due to the circumstances of their

interaction with him. (ECF No. 90, p. 12).

A challenged use of force is “evaluated for objective reasonableness based upon the

information the officer[] had when the conduct occurred.” County of Los Angeles v. Mendez,

581 U.S. 420, 428 (2017) (quoting Saucier, 533 U.S. at 207); see also Graham v. Connor, 490

U.S. 386, 396 (1989) (“The ‘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.”).

In determining the objective reasonableness of a particular use of force, courts may consider

several factors, including: (1) the severity of the crime at issue; (2) whether the suspect poses an

immediate threat to the officer or public safety; (3) whether the suspect is actively resisting or

attempting to evade arrest; (4) physical injury to the suspect; (5) whether the suspect is violent or

dangerous; (6) the duration of the use of force; (7) whether the use of force takes place in the

context of effecting an arrest; (8) the possibility that the suspect may be armed; and (9) the

number of people with whom the officers must contend at one time. Graham, 490 U.S. at 396

(setting forth factors one through three); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997),

abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007) (setting

forth factors four through nine); see also El, 975 F.3d at 336. Considering those factors and

viewing the facts in the light most favorable to Mileham——as the Court must—a jury could

conclude that Conley’s conduct was objectively unreasonable. But the Court holds that a

reasonable jury could not so find as to Swierkosz.

i. Swierkosz

As explained above, an officer’s use of force is reviewed for its objective reasonableness

under the circumstances. The focus of this analysis is the force used and the circumstances in

which it was employed. In examining whether Swierkosz is protected by qualified immunity, the

Court is required to consider what force he is accused of using. As explained above, the record

in this case, when viewed in a light most favorable to Mileham, cannot support a finding that

Swierkosz is responsible for much, if any, of the harm that Mileham asserts. Mileham admits

that Swierkosz never struck him during the parties’ entire encounter. (ECF No. 98, 28). The

only conduct of Swierkosz that could be viewed as a use of force against Mileham is: (1) his

attempt to use the taser on Mileham; and (2) carrying or dragging (of which the specifics are in

dispute) Mileham from the boat to the shore. The Court holds that neither act could be deemed

unreasonable when viewed objectively.

First, as to the deployment of the taser, it is important to note that it is not disputed that

Swierkosz deployed his taser against Mileham. (ECF No. 91, § 16); (ECF No. 98, 4 16).

Swierkosz states that the taser was ineffective because only one of the probes contacted

Mileham’s body, preventing it from discharging an electrical output. (ECF No. 91, 4 16).

Mileham’s denial as to this point is, at best, ambiguous. (See ECF No. 98, § 16). He does not

specifically admit that the taser failed to subdue him. (See id.). Nor does he clearly deny the

claim that he was not shocked by the taser. (See id.). It does not matter. The Court holds that

even if Swierkosz’s taser had successfully deployed, its use was not objectively unreasonable in

the circumstances of Mileham’s lawful arrest.

Numerous federal appellate courts, including the United States Court of Appeals for the

Third Circuit, “ha[ve] approved [] the use of taser guns to subdue individuals who resist arrest or

refuse to comply with police orders.” Brown v. Cwynar, 484 F. App’x 676, 680 (3d Cir. 2012)

(affirming a district court’s grant of qualified immunity to a police officer who tased a 73-year-

old man who refused to give the officer his car keys); Grab v. Columbia Borough, No. 20-1815,

2022 WL 103350, at *7 (E.D. Pa. Jan. 10, 2022) (citing Estep v. Mackey, No. 3:11-207, 2016

WL 1273249, at *2, *6 (W.D. Pa. Mar. 31, 2016) (“Estep IP’) (granting qualified immunity on

remand to the police officer who deployed a taser when plaintiff attempted to run away while

being escorted to police station)); McNeil v. City of Easton, 694 F. Supp. 2d 375, 393-95 (E.D.

Pa. 2010) (citing Wargo v. Municipality of Monroeville, 646 F. Supp. 2d 777, 786 (W.D. Pa.

2009) (“Even if a plaintiff is not armed, it is reasonable for law enforcement officers to employ

multiple rounds of non-lethal force if necessary to effectuate an arrest.”)); Gruver v. Borough of

Carlisle, No. 4:CV 05-1206, 2006 WL 1410816, at *3,*5 (M.D. Pa. May 19, 2006) (holding that

police officers attempting to restrain unarmed plaintiff who appeared to be intoxicated or in

distress did not use excessive force when, in order to protect plaintiff, themselves, and others,

they deployed a taser three times). The Court holds that upon consideration of the circumstances

in this case, Swierkosz’s deployment of his taser was not objectively unreasonable.

The Court likewise holds that the only other conduct specifically attributed to

Swierkosz—removing Mileham from the boat—is not objectively unreasonable in this context.

Here, again, there is some degree of dispute as to the language used to describe what happened,

ie., “carry” versus “drag.” (See ECF No. 91, § 24); (ECF No. 98, § 24). But Mileham has not

alleged, and the record does not support, any contention that the officers used any unusual degree

of force or violence in removing Mileham from the boat—particularly where the record is

undisputed that Mileham refused to leave the boat without donning a lifejacket. (ECF No. 91, {

10

19); (ECF No. 98, J] 19, 69). It is well-established that officers are permitted to move a suspect

in effectuating a lawful arrest—especially to a more safe or controlled location.

It is also well-established that police officers are permitted to use a reasonable amount of

force to effect an arrest; the degree of this force is dictated by the suspect’s behavior. Here,

Mileham himself was an obstacle preventing the police from performing an official function

(arresting him) by refusing to comply and leave the boat. (See ECF No. 91, § 19); (ECF No. 98,

79 19, 69). “Our Fourth Amendment jurisprudence has long recognized that the right to make an

arrest or investigatory stop necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.’ Graham, 490 U.S. at 396 (quoting Terry v. Ohio, 392

U.S. 1, 22-27 (1968)).

Because the test of reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application, ... however, its proper application

requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.

Graham, 490 U.S. at 396 (quotation, citation, and alteration omitted); see also Tennessee v.

Garner, 471 U.S. 1, at 8-9 (1985) (“[T]he question [is] whether the totality of the circumstances

justifie[s] a particular sort of ... seizure’’).

The Court holds that no reasonable jury could find that Swierkosz engaged in an unlawful

use of force by involuntarily removing Mileham from the boat in the course of the lawful arrest.

Even if, as Mileham characterizes it, the officers “dragged” him from the boat, there is no

indication in the record or in Mileham’s Complaint or Counter Statement of Material Facts that

the alleged dragging was executed with an unusual level of force or violence. Further, Mileham

fails to associate the allegedly severe physical injuries he suffered with his forcible extraction

from the boat. (See ECF No. 98, 4] 35, 79-80).

11

Mileham admits, however, that he refused Defendants’ request to leave the boat

voluntarily. (ECF No. 98, § 23). There is no question that a boat is a less-than-ideal location for

police to effectuate an arrest and that the shore is a safer location for all involved. Indeed, in

denying that he attempted to push Swierkosz into the river, Mileham alleges that Conley’s

movement made the boat rock to the extent that Swierkosz lost his balance and nearly fell into

the river. Under the circumstances, Defendants were objectively justified in using force to

remove the admittedly resisting Mileham from the boat.

Because the Court holds that the only two allegations of force against Swierkosz were not

objectively unreasonable in the circumstances, the Court holds that he is protected by qualified

immunity.

ii. Conley

Mileham asserts that Conley’s conduct is far more extensive than that of Swierkosz. (See

ECF No. 98, {9 16, 19, 22, 25-27, 67, 72). Most of the allegations about the nature and extent of

force used by Conley are sharply disputed between the parties. Mileham claims that Conley

grabbed him, threw him face down on the floor of the boat, and handcuffed him. (ECF No. 98, §

16). Conley, however, claims that Mileham was actively fighting him, although Mileham

disagrees with this. (ECF No. 91, {§ 16-17); (ECF No. 98, § 17). Mileham also claims that

Conley, who had disembarked, reboarded the boat, approached him, and punched him in the face

twice, knocking him to the floor of the boat. (ECF No. 98, § 22). Conley admits that he

“tackled” Mileham but did so in response to Mileham’s attempt to cast Swierkosz overboard.

(ECF No. 91, § 22). Next, Conley contends that he and Swierkosz carried Mileham off the boat,

which Mileham characterizes as “dragging.” (ECF No. 91, 4 24); (ECF No. 98, § 24). Once off

the boat, Mileham claims that Conley rolled him onto his back, placed his foot on Mileham’s

12

chest, and punched him four or five times until he lost consciousness. (ECF No. 98, § 25).

Conley admits that he punched Mileham but states that he was trying to subdue a still-resisting

Mileham. (ECF No. 91, 25-26).

There is no question that the factual accounts proffered by Mileham and Conley are

irreconcilable. In determining whether Conley’s conduct was objectively unreasonable in the

context of the Fourth Amendment, the Court must examine the record in a light most favorable

to Mileham. The Court will do so and examine whether the conduct Mileham alleges was

objectively unreasonable in the circumstances using the eight-part inquiry discussed above.

As to the first prong, the severity of the crime at issue, while Mileham was charged with

several crimes—including serious offenses—he ultimately pled guilty to disorderly conduct,

which is not viewed as a particularly violent or serious offense. See Groman v. Township of

Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (concluding that the “crime[] of disorderly

conduct” is not “particularly severe”). Moreover, “even if an individual is engaged in disorderly

conduct, there still could be a level of responsive force that is ... ‘excessive and unreasonable.””

EI, 975 F.3d at 339 (citation omitted). Viewing the undisputed facts as a whole, the Court holds

that this factor weighs in favor of Mileham. He was not suspected of any independent crime at

the time of his encounter with Defendants and was ultimately convicted (upon his guilty plea) of

a minor crime.

With respect to the second factor, the Court holds that there is a genuine dispute as to

whether Mileham posed an immediate threat to the officers and/or public safety at the time

Conley struck him and otherwise used force against him. As explained above, the parties

profoundly disagree about nearly every aspect of their encounter, from whether Mileham was

drunk to whether he was using or attempting to use force against Defendants or otherwise

13

evading arrest. This genuine dispute must be resolved by a jury. It is possible that a jury could

reasonably determine that Mileham did not pose an immediate threat to the officers and/or public

safety. As such, this factor also weighs in Mileham’s favor.

The Court will address factors three, five, six, and seven collectively. The critical facts

associated with these factors are all in dispute. While there is no question that Defendants

ultimately decided to place Mileham under arrest, when that happened within the timeline of

- their interaction is disputed. So too is the nature of Mileham’s resistance. He admits that he

refused to disembark from the boat without donning a life jacket. (ECF No. 98, { 23).

Otherwise, Mileham denies actively resisting or behaving violently throughout his encounter

with Conley. Defendants offer a more robust narrative of resistance. They contend that he was

obstructive, volatile, disobedient, and took active physical efforts to evade arrest and, indeed,

violently assault both officers. Thus, the critical facts that undergird a determination on factors

three, five, six, and seven must be resolved by ajury. It is possible that a jury could make factual

findings favorable to Mileham as to each of these factors.

The fourth factor, the nature of Mileham’s injuries, also weighs in favor of Mileham. He

alleges that Defendants beat him so severely that he lost consciousness. (ECF No. 98, ff 25, 75).

He contends that he received serious injuries to his face that caused substantial swelling to the

extent that he could not see for nearly two weeks. (/d. J 80). A reasonable jury could determine

that these injuries were disproportionate to Mileham’s conduct under the circumstances alleged.

The final two factors—the possibility that Mileham was armed and the number of

persons the officers had to contend with—weigh in favor of Mileham. Although Defendants

contend that he had a torch at the beginning of their encounter, they adduce no facts showing that

they held a reasonable belief that Mileham was armed. Likewise, despite the presence of a

14

female companion on the boat, the facts show that Mileham, alone, was engaging with the

officers. Defendants did not have to deal with Mileham simultaneously with other suspects.

Weighing all of these factors together, and upon consideration of the totality of the

circumstances, the Court holds that a jury could determine that Conley’s use of force was

objectively unreasonable. Accordingly, a jury could find that Conley violated Mileham’s Fourth

Amendment right to be free from excessive force. A jury will have to sort through the parties’

conflicting accounts of what happened and determine whether Conley did, in fact, use

objectively unreasonable force in the context of the encounter with Mileham.

2. The constitutional right was clearly established at the time of

Conley’s use of force.

The second step of the qualified immunity inquiry asks whether “the [constitutional] right

was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011) (citing Harlow, 457 U.S. at 818). To answer that question, the Court must first

“define the right allegedly violated at the appropriate level of specificity.” Peroza-Benitez, 994

F.3d at 165 (citation omitted); see also El, 975 F.3d at 338 (“[T]he right must be defined with

specificity.”). The Supreme Court has repeatedly instructed lower courts “not to define clearly

established law at a high level of generality.” Ashcroft, 563 U.S. at 742; see also Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam) (stating that the inquiry “must be undertaken in

light of the specific context of the case, not as a broad general proposition”) (internal quotation

omitted). This is “especially important in the Fourth Amendment context.” Mullenix v. Luna,

577 U.S. 7, 12 (2015) (per curiam) (citation omitted). Thus, the “general proposition”

established by Graham—i.e., that “use of force is contrary to the Fourth Amendment if it is

excessive under objective standards of reasonableness”—is not “particularized” enough.

Saucier, 533 U.S. at 201-02; see also Ashcroft, 563 U.S. at 742.

15

The specific Fourth Amendment right at issue in this case is the right of an unarmed

individual who is not resisting arrest to be free from being beaten by an arresting officer. Again,

as explained above, the Court recognizes that the facts are sharply in dispute as to whether

Mileham was resisting, but it must read the conflicting factual accounts in a light most favorable

to Mileham. See Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009); see also Curley, 298 F.3d

at 278 (noting that “a decision on qualified immunity will be premature when there are

unresolved disputes of historical fact relevant to the immunity analysis”). The Court must deny

summary judgment if, based on Mileham’s version of the facts, Conley violated

Mileham’s clearly established constitutional rights. Giles,571 F.3d at 327 (finding that the

district court was wrong to dismiss plaintiffs Eighth Amendment claims

on qualified immunity grounds because there was a factual dispute as to whether plaintiff had

ceased resisting when he was kicked by officers, and the court “must accept [the plaintiffs] □

version of the facts”).

The Court holds that the “clearly established” prong has been satisfied. See Saucier, 533

U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.”). At the time of Conley’s encounter with Mileham, the law was

clear that beating an unarmed suspect who was not resisting arrest violates the Fourth

Amendment’s prohibition against excessive force. See, e.g., Giles, 571 F.3d at 326 (“[A]t the

time of the incident in 2001, it was established that an officer may not kick or otherwise use

gratuitous force against an inmate who has been subdued.”); Blazek v. City of lowa City, 761

F.3d 920, 925 (8th Cir. 2014) (“It was clearly established in 2009 that when a person is subdued

and restrained with handcuffs, a gratuitous and completely unnecessary act of violence is

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unreasonable and violates the Fourth Amendment.”) (internal quotation omitted); Morrison v.

Bd. of Trs. of Green Twp., 583 F.3d 394, 404 (6th Cir. 2009) (“This Court has consistently held

in light of the reasonableness standard that ‘use of force after a suspect has been incapacitated or

neutralized is excessive as a matter of law.’”) (quoting Baker v. City of Hamilton, 471 F.3d 601,

607-08 (6th Cir. 2006)); Jennings v. Jones, 499 F.3d 2, 16-17 (1st Cir. 2007) (holding that a

reasonable officer should have known that it was unconstitutional to increase the use of physical

force after an arrestee who has been resisting arrest stops resisting and warns officers that they

are hurting him).

Because the Court has held that there is a genuine issue of material fact as to whether

Conley used objectively unreasonable force against Mileham, subjecting him to an unlawful

seizure in violation of the Fourth Amendment, and because the Court holds that Mileham’s rights

were clearly established at the time of the alleged conduct, the Court denies Conley the

protection of qualified immunity. The claim against him under § 1983 will proceed to trial.

B. SUMMARY JUDGMENT IS WARRANTED AS TO MILEHAM’S STATE LAW

CLAIMS AGAINST SWIERKOSZ BUT NOT CONLEY.

In addition to his Fourth Amendment claims, Mileham asserted state law claims against

Conley and Swierkosz for assault and battery. (ECF No. 37, §] 62-66). Under Pennsylvania

law, “an assault is an intentional attempt by force to do an injury to the person of another, and a

battery is committed whenever the violence menaced in an assault is actually done, though in

ever so small a degree, upon the person.” Renk y. City of Pittsburgh, 641 A.2d 289, 293 (Pa.

1994) (internal quotation omitted). An officer is permitted to use an amount of force reasonable

under the circumstances to effectuate a lawful arrest. “The reasonableness of the force ...

determines whether the police officer’s conduct constitutes an assault and battery.” Russoli v.

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Salisbury Township, 126 F. Supp. 2d 821, 870 (E.D. Pa. 2000) (internal quotation marks and

citation omitted).

The Court resolves Defendants’ motion on the state law claims the same way it did for

Mileham’s claim under § 1983. The determination turns on whether Defendants’ conduct was

objectively reasonable under the circumstances. As explained above, no reasonable jury could

find that the conduct alleged against Swierkosz was objectively unreasonable. On the other

hand, there are a number of issues of material fact with respect to Conley’s conduct. As such,

summary judgment on Mileham’s state law claims will be granted as to Swierkosz but denied as

to Conley.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No.

89) will be granted as to all claims against Swierkosz and denied as to all claims against Conley.

The claims against Conley will proceed to trial. Orders of Court will follow.

BY THE COURT:

2 iL L & SA fle

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

lls 24° £628

Date

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