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ALLENTOWN – The Lancaster Police Department has flatly denied claims of excessive force and assault from a Maryland woman over an incident that allegedly took place during a forcible eviction two years ago and resulted in the plaintiff suffering a broken arm.
Salome Nzeba Kapepula of Derwood, Md. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 29 versus the City of Lancaster, the Lancaster Police Department, Officer Derek R. Kanuck and John Doe Officers 1-10, all of Lancaster.
“Plaintiff Kapepula was temporarily occupying the property and thus had legal rights as an occupant therein. On or around Oct. 2, 2021, plaintiff Kapepula’s roommate was attempting to unlawfully evict and eject her from the property. For example, plaintiff Kapepula’s roommate called the police to have her removed from the property. Defendants Kanuck and Does were called to the property on Oct. 2, 2021, where plaintiff Kapepula was found on the front porch gathering her belongings,” the suit said.
“Defendants Kanuck and Does were quickly informed that the basis for the police call was to evict and eject plaintiff Kapepula from the property. Thereafter, while at the property, defendants Kanuck and Does admitted and conceded that they did not have the authority nor jurisdiction to evict plaintiff Kapepula. Nonetheless, without any reasonable cause or proper justification, defendants Kanuck and Does surrounded plaintiff Kapepula, so that she had no means to leave. As such, an unlawful seizure was taking place.”
The suit added that on numerous occasions, plaintiff Kapepula pleaded with Officer Kanuck and the Doe Officers to be left alone, but they continued to restrict her movement, before grabbing her purse and unlawfully searched her belongings without her consent.
“Next, without any reasonable basis or probable cause, Officers Kanuck and Does moved closer to plaintiff Kapepula in a threatening manner. Plaintiff Kapepula pleaded with the officers to leave her alone. Officers Kanuck and Does did not leave plaintiff Kapepula alone, but in fact, brought her to the ground and unlawfully attempted to handcuff her. While in the process of handcuffing her, the use of force was so extreme that it snapped plaintiff Kapepula’s left arm. She was caused to suffer a left closed distal third spiral humeral fracture. Defendants Kanuck and Does in attempting to effectuate an arrest and in handcuffing plaintiff Kapepula used excessive and unreasonable force,” the suit stated.
“Plaintiff Kapepula was immediately brought to LGH Emergency Department, where she was evaluated and placed in a posterior splint and sling. On Oct. 7, 2021, plaintiff Kapepula underwent an open reduction and internal fixation surgery for her broken arm. As an attempt to cover-up their grotesque and inhumane actions which violated plaintiff Kapepula’s civil rights, Officer Kanuck and Does has the audacity to cite plaintiff Kapepula with summary offenses for public drunkenness and trespass. Knowing how false these charges were, Officers Kanuck and Does did not even bother to show up to the hearing at the Magisterial District Level and the summary offenses were dismissed. Based upon the circumstances, defendants had no reasonable nor cognizable basis for utilizing excessive force, searching her personal belongings and seizing her, including the assault and battery upon plaintiff Kapepula.”
The suit continued in mentioning that upon information and belief, defendant Kanuck has since been transferred to a different police department.
“It is sad that still in today’s world a young, African-American woman is still subjected to heinous offenses by law enforcement. Plaintiff Kapepula demands justice for having her civil rights violated,” the suit said.
The defendants motioned to dismiss the case on Jan. 11, for failure to state claims upon which relief could be granted.
“In this case, plaintiff fails to allege any facts to suggest, let alone establish, the existence of an official municipal policy that caused her injury as required by Monell. In fact, absent from the complaint, there are not any facts that City of Lancaster engaged in any wrongdoing. Additionally, plaintiff does not allege more than a single incident. Her interactions with City employees alone cannot form the basis of a Monell claim. In short, plaintiff has failed to state a Monell claim because she failed to allege (and include facts) that a policy, custom or practice deprived her of a federally protected right,” the dismissal motion said.
“Plaintiff named as a defendant, the Lancaster Police Department. There can be no action against the Police Department because it is not a separate legal entity that can be sued. Furthermore, the Supreme Court has ruled that ‘all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under the ‘substantive due process’ approach. Therefore, substantive due process violations should be analyzed under the Fourth Amendment, and not the Fourteenth Amendment. In this matter, plaintiff fails to assert sufficient facts to support an equal protection claim. Plaintiff simply concludes that her equal protection rights were violated. Similarly, plaintiff failed to plead sufficient facts to support due process causes of action Therefore, Count II should be dismissed since plaintiff’s causes of action stem directly from the use of force, alleged unreasonable search and seizure and false arrest.”
After an amended version of the complaint was filed on Jan. 23, sounding in Fourth and Fourteenth Amendment violations and assault and battery, the defendants filed a second, partial motion to dismiss the case on Feb. 2.
Specifically, the motion seeks the cause of action under the Fourteenth Amendment to be dismissed.
“In this matter, plaintiff fails to assert sufficient facts to support an equal protection claim. Plaintiff simply concludes that her equal protection rights were violated. Similarly, plaintiff failed to plead sufficient facts to support a due process causes of action. Substantive due process prevents government from exercising power without a legitimate objective. To succeed on a substantive due process claim, plaintiff must show conduct by the defendants which shocks the conscience. The conduct must be evaluated within the context of the particular event,” according to the dismissal motion.
“The Supreme Court has ruled that ‘all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under the ‘Substantive Due Process’ approach.’ Therefore, Substantive Due Process violations should be analyzed under the Fourth Amendment and not the Fourteenth Amendment. Therefore, Count III should be dismissed since plaintiff’s causes of action stem directly from the use of force, alleged unreasonable search and seizure and false arrest.”
In a Feb. 15 response to the motion to dismiss the amended complaint, the plaintiff reasserted her claims against the defendants.
“To the extent that defendants’ motion to dismiss plaintiff Kapepula’s first amended complaint’s Third Count, to wit: Violation of plaintiff Kapepula’s Fourteenth Amendment rights claims plaintiff Kapepula’s allegations are covered and rooted under the Fourth Amendment, plaintiff Kapepula does not contest the dismissal of the Third Count, without prejudice. If, after discovery, it is determined plaintiff Kapepula does – in fact – have a viable cause of action under the Fourteenth Amendment, plaintiff Kapepula reserves the right to amend the complaint so as to reassert same,” the response stated.
“Of importance, plaintiff Kapepula wishes to point out to the Court that defendants’ partial motion to dismiss, inadvertently, seeks dismissal of Count II rather than Count III. In light of such, plaintiff Kapepula requests the Court’s dismissal, without prejudice, should apply to Count III, only.”
UPDATE
On Aug. 30, U.S. District Court for the Eastern District of Pennsylvania Judge Mia Roberts Perez granted the motion, as to Count III of the complaint.
“Upon consideration of defendants City of Lancaster, Lancaster Police Department and Derek R. Kanuck’s partial motion to dismiss plaintiff’s amended complaint and plaintiff Salome Nzeba Kapepula’s response not contesting said dismissal, without prejudice, said motion is granted as follows: Count III of plaintiff’s first amended complaint is dismissed without prejudice,” Perez said.
Following this order, the named defendants answered the complaint on Sept. 14. They again denied the allegations and provided 17 affirmative defenses on their own behalf.
“Plaintiff’s amended complaint fails to set forth a claim, in whole or in part, upon which relief can be granted. Neither, an act, or failure to act on the part of defendants, violated any of plaintiff’s constitutional rights. Plaintiff’s claims are barred in whole or in part, or otherwise subject to reduction by the doctrines of res judicata and/or collateral estoppel. At all times material hereto, plaintiff was afforded all of the rights, privileges and immunities granted pursuant to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. At no time material hereto did defendants, act in bad faith or in an unreasonable, extreme, willful, wanton, outlandish, outrageous and/or malicious manner. Plaintiff suffered no cognizable injury or damages as a result of any act or omission by defendants. Plaintiff’s claims are barred by the statute of limitations. Some or all of plaintiff’s claims are not cognizable claims under either state or federal law. All actions taken by the answering defendants were objectively reasonable under the circumstances,” the defenses said.
“Defendant Kanuck is entitled to absolute and/or qualified immunity with respect to plaintiff’s claims. The actions and conduct of the answering defendants, to the extent that they occurred as alleged, were objectively reasonable under the circumstances of which answering defendants were then and there aware, and they enjoy qualified immunity from all liability. The answering defendants’ alleged action and/or inaction did not rise to the level of constitutional violation and therefore, the plaintiff did not suffer any infringement of her constitutional rights. The actions and conduct of the answering defendants did not violate any clearly established state, or constitutional or federal statutory right of which the defendants reasonably should have been aware. The force used upon plaintiff was at all times reasonable under the circumstances. Plaintiff is not entitled to punitive damages as the answering defendants’ actions/inactions were at all times reasonable given the circumstances they encountered. Plaintiff’s claims are barred based on the doctrine of ‘unclean hands.’ Plaintiff failed to obey the lawful commands of Kanuck and other officers. Plaintiff was intoxicated.”
For counts of civil rights violations through excessive force under 42 U.S.C. Section 1983, violation of Fourth Amendment rights and assault and battery, the plaintiff is seeking compensatory damages, exemplary and punitive damages, interest, attorney’s fees and costs and such other and further relief as the Court deems just and equitable.
The plaintiff is represented by Ian V. Gallo of Town Law and Jordan Strokovsky of Strokovsky, LLC, both in Philadelphia, plus Matthew B. Weisberg of Weisberg Law, in Morton.
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 5:22-cv-04741
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com