United States District Court, D. Delaware
Michael I. Silverman, Esquire of Silverman McDonald & Friedman, Wilmington, Delaware. Counsel for Plaintiffs. Of Counsel: Brian S. Chacker, Esquire of Gay Chacker and Mittin, P.C., of Philadelphia, Pennsylvania.
Michael E. McTaggart, Esquire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.
SUE L. ROBINSON, District Judge.
On October 28, 2011, plaintiffs Rodney and Genevieve Bethea filed this civil rights action pursuant to 42 U.S.C. § 1983 against defendants State of Delaware, Delaware State Police, Corporal Greg Rah and Corporal Hassan Greene, arising from an incident occurring on April 1, 2011. (D.I. 1) Plaintiffs allege violations of their rights under the Fourth and Fourteenth Amendments to be free from excessive force, false arrest, malicious prosecution, due process of law, and conspiracy. They also assert state law claims of assault, battery, mauling and punishment of plaintiff Rodney Bethea ("plaintiff husband").
Defendants filed their answer on April 2, 2012. (D. I. 11) Pursuant to a scheduling order, the parties pursued discovery, including depositions. (D.I. 12, 41) Plaintiffs have filed a motion for an extension of time to serve expert reports, which remains pending before the court. (D. I. 43)
On July 1, 2013, defendants moved for summary judgment. (D.I. 45) The matter is fully briefed. (D.I. 52, 53) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, defendants' motion for summary judgment will be granted in part and denied in part.
On the evening of March 31, 2011, Gillisa Bethea ("Gillisa") went to the Pale Dog Bar, Newark, Delaware ("Pale Dog"). (D. I. 52 at A-22) While inside the Pale Dog, Gillisa encountered a friend from high school, Delisha Portluck ("Delisha"). After dancing for about an hour, Gillisa and Delisha were approached by two unknown men. While standing talking together, the men touched Gillisa's breast and vagina, without her permission ("the groping"). ( Id. at A-22) When Gillisa rejected the groping, one man threw his drink on her. ( Id. at A-22-23) Delisha responded by throwing her drink on one of the men. Next, an unknown woman charged toward Gillisa and pushed her. ( Id. at A-23) A Pale Dog security officer ("bouncer") quickly intervened and removed Gillisa from the bar.
Delisha followed behind, leaving the Pale Dog to help her friend. ( Id. at A-34) Delisha found Gillisa, crying hysterically and standing outside the front door of the Pale Dog. Together, they walked through the parking lot to Gillisa's car. There, Gillisa called her parents to report the groping.
Plaintiff husband, 52 years old at the time, was asleep when his daughter called. Plaintiff wife awakened him with news of the groping. He dressed quickly and drove to the Pale Dog, approximately ten minutes away, to assist his daughter. ( Id. at A-8)
When plaintiff husband arrived at the shopping center, he met Gillsa and Delisha in the parking lot. Together, they approached defendant Greene to report the groping. ( Id. at A-9, A-24-25, A-34) Gillisa told defendant Greene what had happened and that she wanted to file a police report. ( Id. at A-67) Greene did not respond to Gillisa; instead, he turned away in order to talk to a man about a personal matter, unrelated to police business. ( Id. at A-35, A-68)
Gillisa, Delisha and plaintiff husband walked back toward the Pale Dog to find another state trooper to report the groping. Before they could speak with an officer, the men who had groped Gillisa approached. ( Id. at A-24, A-9) Plaintiff husband questioned the men about the groping. In response, the men cursed, threatened and taunted plaintiff husband. Plaintiff husband told Gillisa and Delisha that they were leaving and, together, they retreated toward the parking lot. ( Id. at A-9, A-25)
Defendant Rash and his K-9 partner ("Argos") were standing nearby watching these events unfold. (D.I. 47 at A-23) Defendant Rash surmised that the men were getting ready to fight. ( Id. at A-24) Defendant Rash asked defendant Greene to stand closer to him. ( Id. at A-23) Defendants observed plaintiff husband, Gillisa and Delisha walk by them. Defendant Rash testified that he told them there would not be any fighting and that plaintiff husband should continue walking away from the men. ( Id. at A-24)
As the group walked farther from the Pale Dog, the younger men continued to pursue and taunt plaintiff husband. To protect his daughter and Gilisha, plaintiff husband turned to face the men, continuing to walk backwards. ( Id. A-9) One of the men punched plaintiff husband. ( Id. at A-71) Two other men joined in the attack, punching and kicking plaintiff husband. ( Id. at A-36-37; A-72) Plaintiff husband fell to the ground, lying on his back as the men continued to punch and kick him. ( Id. at A-10, A-44, A-72, A-80) People began to gather around to watch the fight. ( Id. at A-26)
Defendant Rash commanded them to stop fighting or he would send in Argos. (D.I. 47 at A-25-26; D.I. 52 at A-78, A-87) The fight continued, moving in between parked cars. Argos was excited and barking. Defendant Rash continued to order the men to stop fighting. (D.I. 47 at A-25-26) He advised, again, that Argos would be released if the fighting did not cease. Defendants Greene and Rash (along with Argos) moved closer to the fight. Plaintiff husband was on the ground, either on his back or in a kneeling position, as the three men continued punching and kicking him. (D. I. 52 at A-122) Defendant Rash deployed Argos. ( Id. at A-27-A-28) Because the fighting continued, even with Argo deployed, defendant Greene jumped over the hood of a parked car and pushed away the three men beating plaintiff husband. (D.I. 52 at A-72, A-79) Defendant Greene did not chase after or arrest the three men because he "didn't feel the need to" do so. ( Id. at A-74)
Argos bit into plaintiff husband's shoulder and held him. (D. I. 52 at A-14) Plaintiff husband yelled to defendant Rash to remove the dog. ( Id. at A-10) Defendant Rash testified that plaintiff husband stood up and walked, with Argos attached and pulling his arm, toward defendant Rash. (D. I. 52 at A-116, A-118) Plaintiff husband stated that he did not stand up while Argos was holding him. ( Id. at A-33) Defendant Rash ordered plaintiff husband to lie on the ground. ( Id. at A-117) Defendant Rash testified that he "wanted to gain [plaintiff husband's] compliance by lying on the ground so I could remove the K-9 from him and secure him." ( Id. at A-119) Plaintiff husband continued screaming, pleading for Argos to be removed. Because plaintiff husband would not lie down, defendant Rash punched him twice in the face. As a result, plaintiff husband complied. Defendant Rash, then, ordered Argos to release his grasp.
Defendant Rash instructed defendant Greene to handcuff plaintiff husband and arrest him for disorderly conduct. (D.I. 52 at A-72) Defendant Greene believed that it was protocol, after a K-9 bit an individual, for the individual to be arrested. ( Id. at A-80) Defendant Greene took plaintiff husband to a police vehicle to await the arrival of an ambulance. ( Id. at A-72) Plaintiff husband ...