PHILADELPHIA – A pair of West Chester police officers deny they used excessive force when arresting a Luzerne County man more than two years ago, allegedly causing him to suffer a series of bodily injuries and the deprivation of his constitutional rights.
Kevin Nieves of Glen Lyon first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 29 versus the Borough of West Chester and Officers Jerry Ferriola and Greg Cugino, all of West Chester.
“On or about November 1-2, 2019, Kevin Nieves was celebrating his birthday with friends in West Chester, Pennsylvania, a suburban college town. Nieves started the evening at Barnaby’s, a restaurant/bar in West Chester, Pennsylvania. After leaving Barnaby’s and going to a different establishment, Nieves realized he did not have his cell phone. Believing he had left it at Barnaby’s he attempted to return to Barnaby’s where he was denied admittance,” the suit said.
“After an exchange with an employee at the door of Barnaby’s, Officers Jerry Ferriola and Greg Cugino were summoned by the Barnaby’s employee. The officers led Nieves to their police car. They then moved Nieves to the rear of the car and tackled him to the ground. It should be noted that Nieves is short (approximately 5’6”) and slight of build (approximately 150 lbs.), while the officers in question are much larger and more powerful that Nieves. While on the ground one of the officers shouted at Nieves, ‘On your belly now.”
Nieves added that since he was in the grasp of both Officers Ferriola and Cugino he was unable to comply, at which point, one of the officers with a closed fist struck him in the head with a closed fist.
“The officers than rolled Nieves onto his belly, with Officer Ferriola placing his knee on Nieves’s back. Nieves complained of injury, but was taken to the police station and not to the hospital to receive medical treatment, despite request by Nieves for the need for same. Following their release, Nieves reported to the emergency room for treatment for the injuries he sustained,” per the suit.
“As a direct result of the above described acts, plaintiff Kevin Nieves suffered injury to his eye, face, head, neck, and back, and bruising over his body and psychological injury, was forced to endure pain, mental suffering, humiliation and embarrassment, was forced to incur medical and legal expenses and was deprived of his physical liberty, all to his great detriment and loss.”
UPDATE
The defendant officers answered the complaint on Feb. 8, arguing that Nieves has failed to plead sufficient facts to establish liability under the Fourteenth Amendment, failed to provide medical attention and intentional infliction of emotional distress, failed to state a claim against the Borough of West Chester and failed to state a claim or punitive damages.
“Plaintiff’s civil rights claim under the Fourteenth Amendment (Counts I and II) should be dismissed under the case of Graham v. Connor, which held that all claims of excessive force in connection with a Fourth Amendment seizure ‘should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach,” the answer stated, in part.
“Plaintiff has [also] not sufficiently pled that the individual officers were deliberately indifferent to plaintiff’s medical needs. Nor has plaintiff sufficiently pled that he suffered from a serious medical condition requiring medical attention of which these officers were aware. To the contrary, plaintiff asserts that he complained of ‘injury’ but notably does not assert that he had a serious injury, because he did not. Furthermore, he alleges that he went to the emergency room after he was released, but again fails to assert that he required medical assistance for a serious medical condition, because he did not have a serious medical condition, nor were the named officers aware of any such conditions. As such, the claim for same must be dismissed.”
The defense also counters that the plaintiff did not allege a Monell violation on the part of the Borough of West Chester, in that he “failed to allege any facts to suggest, let alone establish, the existence of an official municipal policy that caused him injury as required by Monell,” and that “absent from the complaint are any facts that the Borough of West Chester engaged in any wrongdoing.”
The defense added that, in its view, the plaintiff also failed to plead severe emotional distress or any outrageous or extreme conduct on the part of the defendants as required for an intentional infliction of emotional distress count, nor can he recover punitive damages from a municipality, as per settled common law.
For counts of excessive force and municipal custom/practice which violated the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. Section 1983, assault and battery, intentional infliction of emotional distress, the plaintiff is seeking compensatory damages against each and every named defendant herein, jointly and severally, in excess of $150,000; punitive damages against each and every named defendant herein, jointly and severally, in excess of $150,000, attorney’s fees, expert fees, interest, litigation expenses and costs against each and every named defendant herein, plus other and further damages as this Court may deem just and proper under the circumstances and a trial by jury.
The plaintiff is represented by Aaron B. Gorodetzer of Sbarbaro Law Offices, in Exton.
The defendants are represented by Christine E. Munion of William J. Ferren & Associates, in Hartford, Conn.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-04778
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com