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In Richard David Simmons v. Frank Timek; Charles Miller; City of Atlantic City; and, Mayor Lorenzo Langford, 07-cv-0572, the Court granted summary judgment to our clients, Police Officer Frank Timek and Police Officer Charles Miller, noting that in order to survive a motion for summary judgment, a plaintiff is required to demonstrate, through specific facts and affirmative evidence, a genuine issue of material fact, such that a reasonable jury could return a verdict in favor of the plaintiff. Even though Simmons' version of events differed from the Defendants' version, and even though the Court could not make any credibility determinations with regard to either version, the Court noted that Simmons failed to provide the evidence sufficient to demonstrate
(a) that he is entitled to judgment as a matter of law as to his version of events; or,
(b) that a reasonable jury could return a verdict in his favor based on his version of events.
To withstand a properly supported motion for summary judgment, Plaintiff must identify specific facts and affirmative evidence that contradict those offered by the Defendants, and he must do more than just rest upon mere allegations. Anderson v. Liberty Lobby, Inc., 477 US 242, 256-57 (1986).
In the instant case, other than his allegations, Simmons did not provide any evidence to substantiate his claims, and the Court held that his allegations standing alone were not sufficient to defeat the Defendants' Motions for Summary Judgment.
The Simmons decision also held that bringing to the ground a robbery suspect who is resisting arrest in order to effect arrest is not excessive force. The decision in Simmons also held that the use of pepper spray to subdue an arrestee who had been arrested for a violent crime, and who had continually resisted arrest, acting violently, was not unreasonable under the circumstances. See also, Tofano v. Reidel, 61 F.Supp.2d 289, 301 (DNJ 1999) [officers' attempts to subdue arrestee with pepper spray were reasonable when arrestee was actively resisting arrest]; Mitchell v. Yeadon Borough, No. 01-1203, 2002 WL 265021 at *4 (ED.Pa. February 22, 2002) [use of pepper spray was reasonable when arrestee was "yelling and screaming and cursing" and snatched his arm away from the arresting officer]; Modugno v. Pa. State Police, No. 00-3312, 2001 WL 1382279 at *4 (ED.Pa. November 6, 2001) [use of mace was reasonable when arrestee was "sprayed only after he repeatedly refused to comply with [the officer's] verbal and physical attempts to get him to cooperate"].
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