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William Fennimore v. Lower Township

May 4, 2011

WILLIAM FENNIMORE,
PLAINTIFF,
v.
LOWER TOWNSHIP, DOUGLAS WHITTEN, MICHAEL IAMES, MICHAEL SZEMCSAK, OFFICER MICHAEL KENNEDY, AND JOHN DOES 1-3, DEFENDANTS.



The opinion of the court was delivered by: Bumb, United States District Judge:

NOT FOR PUBLICATION [Doc. No. 21]

OPINION

Defendant Officers Douglas Whitten, Michael Iames, Michael Szemcsak, and Michael Kennedy and Lower Township (collectively "Defendants") move for summary judgment dismissing the Complaint filed by William Fennimore ("Plaintiff"). Plaintiff has failed to file any opposition to the motion. For the following reasons, Defendants' motion is granted.*fn1

I. Statement of the Facts*fn2

A. Altercation Reported on Orchard Drive

On or around midnight on June 15, 2007, Plaintiff's son, Edward, arrived at his home on Orchard Drive with two friends. (Defendant's Statement of Undisputed Facts ("SOF") ¶ 2.) Upon arrival, Edward's sister told him that there had been an argument earlier that night. Id. Some time thereafter, Edward saw his mother, Plaintiff's wife (hereafter "Mrs. Fennimore"), exit the home. (Id. at ¶ 3.) Edward heard a door slam and saw Plaintiff run after Mrs. Fennimore and grab her by the arm. Believing that Plaintiff would hit his mother, Edward intervened. (Id. at ¶ 4-5.) Edward grabbed his father, the Plaintiff, laid him on the ground and held him until police arrived. (Id. at ¶ 4.)

B. Defendant Officers Arrive On-Scene

1. Officer Iames

Defendant Officer Michael Iames was the first officer to arrive on the scene. (Id. at ¶ 82.) Upon seeing several people in the roadway, he called for backup. (Id. at ¶¶ 82, 87.) Officer Iames did not describe seeing Plaintiff restrained by Edward. Rather, Edward "ran up to" Iames and reported that Plaintiff "was fighting him." (Id. at ¶ 82.) Plaintiff also approached but reported that he had been attacked by Edward. (Id.) When Officer Iames asked both parties to remain calm, Plaintiff ran inside his residence. (Id.)

Officer Iames believed that Plaintiff had assaulted Edward, who complained of leg pain and had difficulty breathing. (Id. ¶ at ¶¶ 82-84.) Edward further reported that he did not know if Plaintiff had weapons in the home but thought that Plaintiff hunted. (Id. at ¶ 83.) Officer Iames remained with Edward and waited for backup. (Id. at ¶¶ 87-88.)

2. Officer Whitten

Defendant Officer Douglas Whitten arrived next on scene and observed Officer Iames standing in the street with three white males. (Id. at ¶ 8.) Officer Whitten recognized Edward, who spoke to Officer Iames "in an animated fashion." (Id. at ¶¶ 9-10.) Iames informed Whitten that Plaintiff was intoxicated inside the residence and that there had been an altercation between Plaintiff and his wife. (Id. at ¶ 11.) Either Officer Iames or Edward informed Officer Whitten that Mrs. Fennimore had fled the scene. (Id. at ¶¶ 12-13.) Edward reported being struck by a metal pole, which Whitten observed lying in the yard.*fn3 (Id.at ¶ 17.) Officer Whitten also noted that Edward's shirt was torn and that his arm was injured. (Id.) Edward told Officer Whitten that Plaintiff kept shot guns in his attic. (Id. at ¶ 16.)

3. Officer Szemcsak

Defendant Officer Michael Szemcsak arrived on scene after Officers Iames and Whitten and noted several people out of their houses. (Id. at ¶¶ 43-45.) Officer Szemcsak observed that Edward was upset and crying. (Id. at ¶¶ 44-45.) As Officer Szemcsak approached the home, Edward started to convulse and seize. (Id. at ¶ 46.) Based on his observation of Edward's condition, Officer Szemcsak believed Edward to be the victim of an aggravated assault. (Id. at ¶ 50.)

4. Officer Kennedy ...

A. I remember him coming back out of the house when he went home. I went to move my quad and my buddie's [sic] quad, we were going to take them back to my buddie's [sic] house because of all this happening and he came outside and he got caught onto the tiki torch thing and he picked up...just threw it. Now, he did not throw it at me. Now they were asking a bunch of questions when I was laying on the ground because I...my whole left side went numb. ...

I could not feel my left arm. And that was, I guess from rolling on the ground from this mark here, cause you can see the scrapes and stuff, so...

But, he did not hit me, not swing at me. They say they have something here, some metal thing that he got caught on I guess....

Def. Ex. B.

Defendant Officer Michael Kennedy arrived on scene some time after Officers Iames and Whitten. (Id. at ¶¶ 63-64.) Officer Kennedy observed Edward yelling and "hyperventilating." (Id. at ¶ 64.) He saw one Officer talking to Edward and another Officer at the front door of the residence. (Id. at ¶ 67.)

C. Plaintiff's Arrest

At some point, Sergeant Adams, who is not a named defendant, arrived on scene. (Id. at ¶ 66.) Officer Kennedy knew Plaintiff's older son and informed Sergeant Adams that Plaintiff was an avid hunter. (Id. at ¶ 70.) Adams told Officer Iames to search for Plaintiff's wife*fn4 and sent Officer Kennedy to the back of Plaintiff's residence. (Id. at ¶¶ 30, 20, 66, 88.) Sergeant Adams remained at the front, right side of the house. (Id. at ¶ 71.)

Officer Whitten, who believed that Plaintiff's wife could be in the residence with Plaintiff, began knocking on Plaintiff's front door. (Id. at ¶¶ 19, 22-25.) Whitten heard banging and loud, crashing noises coming from inside the home. (Id.) The Officers heard Plaintiff yelling and cursing, telling the Officers to leave the property. (Id. at ¶¶ 23-24, 48-49, 68.) Officer Whitten asked Plaintiff to answer the door. (Id. at ¶ 26.) Plaintiff did open the door briefly and cursed at Whitten.

(Id. at ¶¶ 27-28.) Officer Szemcsak saw Plaintiff slam the door so hard that the force caused a light fixture to fall. (Id. at ¶ 49.) Officer Whitten continued to knock louder. (Id. at ¶ 28.) Plaintiff ran to the back of the home, opened the back door and yelled at Officer Kennedy to get off his lawn before slamming the back door shut. (Id. at ¶ 72.) Officer Whitten heard Plaintiff yell and curse at Officer Kennedy from the front of the home. (Id. at ¶ 31.) Whitten continued to knock loudly, causing Plaintiff to open the door twice. (Id. at ¶ 32.)

1. Officer Whitten's Account of the Arrest Plaintiff eventually stuck his head through a screen to the side of the front door. (Id. at ¶ 32.) At this point, Officer Whitten sprayed Plaintiff with pepper spray for approximately three seconds from approximately six feet away. (Id. at ¶ 112.) Officer Whitten then kicked in Plaintiff's front door. (Id. at ¶ 34.) Plaintiff and Officer Whitten were alone in the home for approximately ten seconds. (Id. at ¶ 34.) Plaintiff, who wore pants but no shirt, screamed and charged at Officer Whitten. (Id. at ¶¶ 35-36.) Officer Whitten responded by kicking Plaintiff in the chest. (Id. at ¶ 36.) Both Plaintiff and Officer Whitten landed on top of a coffee table, which broke under the men's weight. (Id.) Officer Whitten continued to struggle with Plaintiff and eventually secured one of Plaintiff's arms behind his back. (Id. at ¶¶ 37-39.) The other Officers assisted in restraining Plaintiff's other arm. (Id. at ¶ 37.)

Officer Whitten heard Officer Iames report that he had located Mrs. Fennimore only after he had kicked in Plaintiff's ...


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