PHILADELPHIA – A federal judge has granted a motion compelling the Upper Chichester Township Police Department and several of its members to comply with requests for specific discovery from plaintiff counsel, in connection with a Delaware County man’s assault and excessive force allegations from an incident which occurred two years ago.
Wayne Fawley of Garnet Valley first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 6 versus Upper Chichester Township and Upper Chichester Township Police Department Officers Daniel Clapp, Kevin Connelly, E. Brinkman, J. Mark and John Does.
“On July 17, 2020, at approximately 8:30 p.m., plaintiff was in a single-vehicle car accident when his vehicle had a mishap with the front passenger wheel, which caused plaintiff’s truck to collide with the side of the Chichester Avenue Bridge at Kingsman Road. After plaintiff checked his vehicle, plaintiff attempted to drive his vehicle home when he noticed smoke coming out of the hood,” the suit said
“Plaintiff pulled his vehicle into a baseball field parking lot, after he realized several Upper Chichester police vehicles were behind him. Plaintiff then exited his vehicle with his hands in the air, then without warning or justification, defendant officers grabbed the plaintiff, put him in an illegal choke hold and assaulted/battered the plaintiff, by slamming the plaintiff to the ground and kicking him in the head. As a result of the defendants’ illegal assault, battery and excessive force of the plaintiff, Fawley suffered a ruptured spleen, broken dentures and injuries to his right shoulder.”
The suit added that the incident was an example of excessive force and violated Fawley’s rights under both the U.S. Constitution and federal law.
The defendants filed an answer to the complaint on Sept. 8, denying liability in full for the allegations in Fawley’s complaint and providing affirmative defenses.
“The complaint fails to state a claim upon which relief can be granted. Defendants have not violated any rights, privileges or immunities secured to plaintiff by the Constitution or laws of the United States or the State of Pennsylvania or any political subdivision thereof, nor have defendants violated any act of Congress providing for the protection of civil rights. At all times relevant to the acts alleged in the complaint, defendants acted reasonably in the proper and lawful exercise of their discretion. Any injuries alleged in the amended complaint were caused, in whole or in part, by plaintiff’s culpable or negligent conduct. Plaintiff has failed to comply with all the conditions precedent to bringing this suit. The defendant officers and sergeant have not violated any clearly established constitutional or statutory right of which a reasonable person would have known and therefore are protected by qualified immunity,” the answer stated.
“This action may be barred in whole, or in part, by the doctrine of collateral estoppel and/or res judicata. Any force used was objectively reasonable under the totality of the circumstances. Neither an act nor failure to act on the part of the defendants violated any of plaintiff’s constitutional rights. The Fourth Amendment does not require officers to use the least intrusive or less intrusive alternatives available to them in search and seizure cases. Any alleged alternative methods of force are irrelevant. Defendant Upper Chichester Township does not have any policy, practice or custom that caused plaintiff to be deprived of any constitutional rights.”
UPDATE
On Dec. 12, the plaintiff filed a motion to compel the defendants to cooperate with specific discovery requests, which included background information on all of the defendant officers in question and supporting documents on the events at issue. The plaintiff added that such a motion needed to be filed, due to the defendants’ non-compliance from the time the original requests were made, on Sept. 29.
More than two weeks after the motion’s filing, on Dec. 28, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh granted the plaintiff’s motion.
“It is hereby ordered that plaintiff’s motion to compel is granted. All defendants shall produce responses to plaintiff’s interrogatories and requests for production within 10 days of this order, or risk the imposition of sanctions,” McHugh stated.
For counts of excessive force under the Fourth Amendment to the U.S. Constitution and 42 U.S.C. Section 1983, failure to train, supervise and discipline under 42 U.S.C. Section 1983 and Monell, assault and battery and intentional infliction of emotional distress, the plaintiff is seeking compensatory damages, punitive damages, attorney’s fees, interest, costs of suit and such relief as the Court may deem just and equitable, in addition to a trial by jury.
The plaintiff is represented by Joseph S. Oxman of Oxman Goodstadt & Kuritz, in Philadelphia.
The defendants are represented by Leticia J. Santiago of William J. Ferren & Associates, in Hartford, Conn.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02625
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com