Case 1:15-cv-00068-YK Document 4 Filed 02/09/15 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHEN R. GRACEY,
Plaintiff,

Civil Action No.: 1:15-cv-00068

(Filed: January 9, 2015)

v.

District Judge: Yvette Kane

KEVIN M. GOSS,
MICHAEL C. PENROSE,
ALEXANDER M. GROTE,
GREGORY R. STRAYER,
BENJAMIN A. FRANTZ,
WALTER R. BRUNNER, JR.,
JAMES M. HANNING, JR.
MARC D. PACKRALL,
MICHAEL PREDAJNA,
CRAIG R. FINKLE, and
FRANK NOONAN,
Defendants.

CIVIL ACTION LAW

JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT1

AND NOW comes the Plaintiff, Stephen R. Gracey, by and through his
undersigned counsel, Devon M. Jacob, Esquire, of the law firm of Jacob Litigation,
and avers as follows:

The First Amended Complaint is being filed to correct the naming of a party. Due to a clerical error, Defendant,
James M. Hanning, Jr., was inadvertently listed as Walter R. Hanning.

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Jurisdiction and Venue

1.

This action is brought pursuant to 42 U.S.C. 1983.

2.

Jurisdiction is founded upon 28 U.S.C. 1331 & 1343.

3.

Venue is proper in this Court, as all Defendants are located within the

Middle District of Pennsylvania, and the cause of action arose in the Middle District
of Pennsylvania.
Parties
4.

Plaintiff, Stephen R. Gracey, is an adult, who, currently resides in

Chambersburg, Franklin County, Pennsylvania.

5.

Defendant, Kevin M. Goss, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Goss actions
or inactions were taken under color of state law. He is sued in his individual
capacity.
6.

Defendant, Michael C. Penrose, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Penroses

actions or inactions were taken under color of state law. He is sued in his individual
capacity.
7.

Defendant, Alexander M. Grote, is an adult individual, who, during all

relevant times, was employed by the Pennsylvania State Police (PSP), as a

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Trooper. All of Defendant Grotes actions or inactions were taken under color of
state law. He is sued in his individual capacity.
8.

Defendant, Gregory R. Strayer, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Strayers

actions or inactions were taken under color of state law. He is sued in his individual
capacity.
9.

Defendant, Benjamin A. Frantz, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Frantzs

actions or inactions were taken under color of state law. He is sued in his individual
capacity.
10.

Defendant, Walter R. Brunner, Jr., is an adult individual, who, during

all relevant times, was employed by PSP, as a Trooper. All of Defendant Brunners
actions or inactions were taken under color of state law. He is sued in his individual
capacity.
11.

Defendant, James M. Hanning, Jr., is an adult individual, who, during

all relevant times, was employed by PSP, as a Trooper. All of Defendant Hannings
actions or inactions were taken under color of state law. He is sued in his individual
capacity.

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12.

Defendant, Marc D. Packrall, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Packralls

actions or inactions were taken under color of state law. He is sued in his individual
capacity.
13.

Defendant, Michael Predajna, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper. All of Defendant Predajnas

actions or inactions were taken under color of state law. He is sued in his individual
capacity.
14.

Defendant, Craig R. Finkle, is an adult individual, who, during all

relevant times, was employed by PSP, as a Trooper, with the rank of corporal. All
of Defendant Finkles actions or inactions were taken under color of state law. He
is sued in his individual capacity.
15.

Defendant, Frank Noonan, is an adult individual, who, during all

relevant times, was employed by PSP. From approximately April 12, 2011, through
the present, Defendant Noonan has served as the Commissioner of PSP. All of
Defendant Noonans actions or inactions were taken under color of state law. He
is sued in his individual capacity.

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Factual Background
16.

On January 12, 2013, Plaintiff, Stephen R. Gracey, was the subject of a

protection from abuse (PFA) order that had been obtained in May of 2012, by
Kimberly Miller, the mother of Plaintiffs minor son.
17.

Pursuant to the PFA, Plaintiff was excluded from Millers home, and

was not to have contact with Miller, except in reference to their son.
18.

The PFA further provided that custody of the son was to be exchanged

at Sheetz.
19.

Despite the fact that the PFA provided that Plaintiff was not to have

contact with Miller, Miller admits that she permitted him to have contact almost
daily.
20.

On January 12, 2013, Miller violated the custody order and refused to

permit Plaintiff to take custody of his son.

21.

Therefore, Plaintiff went to Millers residence to pick up his son.

22.

Miller refused to release Plaintiffs son to him.

23.

Miller admits that she provoked the Plaintiff, and claims that in

response, he flattened a tire and damaged the soft-top on her parked convertible, and
subsequently, sent her a threatening text.
24.

Miller called the police to complain about the Plaintiff.

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25.

When Plaintiff discovered that the police had been called, he attempted

to flee the area in a vehicle, because he feared that he would be arrested.

26.

Despite knowing the identity of the Plaintiff, and the non-violent nature

of the alleged criminal violations, in accordance with deficient PSP policy and
training implemented and enforced by Defendant Noonan, the Defendants engaged
in a dangerous vehicle pursuit with the Plaintiff, which unnecessarily provoked a use
of force incident.
27.

On Olde Scotland Road (PA-696) at Mount Rock Road, in

Southampton Township, Franklin County, Pennsylvania, Defendant Strayer and one

or more of the Co-defendants, used a precision immobilization technique (PIT
maneuver) to end the pursuit.
28.

Upon being stopped by the Defendants, one or more of the Defendants

placed Plaintiff at gunpoint.

29.

In an attempt to surrender to the Defendants, Plaintiff placed his hands

outside of his window.

30.

One or more of the Defendants ordered the Plaintiff to (a) exit his

vehicle, (b) face his vehicle, and (c) place his hands up and on the side of his vehicle.
31.

Plaintiff complied with the directions, at which time Defendant Goss

came around the Plaintiffs vehicle and tackled him.

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32.

Defendant Goss admits that he put hands on the driver and delivered

a knee strike to the Plaintiff up under his abdomen/stomach area due to him being
bent over.
33.

Defendant Frantz, Goss, and one or more of the Co-defendants, took

[the Plaintiff] to the ground.

34.

The Defendants technique in tackling and slamming Plaintiff face-

down on the ground, while in accordance with a widely known PSP practice and
custom, was not in accordance with accepted police technique, and placed both the
Plaintiff and Defendants in danger of being injured.
35.

Moreover, the technique is defective in that it is non-controlled, causes

the person being tackled to instinctively place their arms and hands in front of
themselves to break the fall, and makes the persons arms not immediately accessible
for handcuffing.
36.

After being slammed to the ground on his stomach, several Defendants

piled on top of the Plaintiff, which made it difficult, at best, for the Plaintiff to place
his wrists behind his back for handcuffing.
37.

While Plaintiff was face-down on the ground, Defendant Goss admits

that he gave the Plaintiff several more strikes with a closed fist to his abdomen

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area, ribcage, back, [and] shoulders[,] and delivered a knee strike to his upper back
area.
38.

In addition, Defendant Penrose admits that he kneeled with both of his

legs on Plaintiffs right leg, and that he struck [Plaintiff] several times in the kidney
and rib area with a closed fist.
39.

While Plaintiff was face-down on the ground being restrained by

several Defendants, Plaintiff was punched and kicked in the head and face, which
caused him to suffer serious permanent injuries.
40.

An officers mobile video recorder (hereinafter MVR) captured a

portion of the incident. See Video, Exhibit A.

41.

In the MVR, two of the Defendants 2 can be seen kicking what is

believed to be the Plaintiff, while he is being restrained on the ground by several

other Defendants.
42.

When one of the Defendants is kicking the Plaintiff, another Defendant,

believed to be Defendant Goss, looks at the MVR, turns back to the Defendant who

On December 20, 2014, undersigned counsel sent an Email to Scott R. Ford, chief counsel for PSP, providing Ford
with access to the MVR in question, and requested that he identify the main trooper who can clearly be seen on video
kicking the Plaintiff. Undersigned counsel explained that he was reaching out as a professional courtesy, in the hope
that he would be able to limit the number of Defendants in the instant litigation. On December 22, 2014, however,
Ford sent undersigned counsel an Email, advising him (1) not to send him email, and (2) to resend the exact same
request to him via First Class Mail. Ford then blocked undersigned counsels ability to send him emails.

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is kicking the Plaintiff, and says something to him, at which time the Defendant stops
kicking the Plaintiff.
43.

Based on the Defendants body language, and the context, it is believed

that the Defendant warned the Co-defendant that the assault was being recorded on
video.
44.

As a result of the beating, Plaintiff suffered serious facial injuries and

was bleeding profusely from around his left eye.

45.

Defendant Goss admits that when the beating ended, he had Plaintiffs

blood on his hands.

46.

Despite carrying pepper spray, none of the Defendants utilized same.

47.

Moreover, none of the Defendants were injured by the Plaintiff.

48.

Defendant Brunner was the senior ranking trooper on scene when

Plaintiff was beaten by the Defendants.

49.

Defendants Goss, Penrose, Grote, Strayer, Frantz, Brunner, Hanning,

Packrall, and Predajna, observed and/or participated in assaulting the Plaintiff.

50.

Said Defendants had an appreciable opportunity to intervene to prevent

or to stop the assault but failed to do so.

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51.

Moreover, said Defendants, including Defendant Finkle, failed to

properly and completely document in official incident reports, the force that had
been used against the Plaintiff.
52.

As a result of the Defendants unlawful actions, Plaintiff was rendered

unconscious at the scene.

53.

Emergency medical personnel from the Shippensburg Area EMS

provided medical treatment to the Plaintiff, and transported him to the

Chambersburg Hospital.
54.

At Chambersburg Hospital, doctors stabilized the Plaintiffs medical

condition, and determined that Plaintiff needed to be immediately transferred to a

trauma unit.
55.

Emergency medical personnel from the West Shore Emergency

Medical Services, provided medical treatment to the Plaintiff, and transported him
to the Hershey Medical Center.
56.

Ultimately, it was determined that one or more of the Defendants broke

the bones that comprise Plaintiffs left eye orbit in several places, caused serious
neck and back injuries, and other traumatic injuries to Plaintiffs body. See
Photograph, Exhibit B.

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57.

On May 23, 2013, Plaintiff underwent surgery on his left eye to attempt

to repair some of the damage caused to his eye by the Defendants.

58.

To date, Plaintiff has not fully recovered from his injuries, some of

which are permanent.

59.

Despite knowing that the Defendants under his command had caused

Plaintiff to suffer serious injury, Defendant Finkle completed a Blue Team Entry
Report to report only the fact that the PIT maneuver had been used, and that
Defendant Grote had attempted unsuccessfully to use his Taser during the incident.
60.

Defendant Frank Noonan is the Commissioner of PSP, and as such, a

policymaker.
61.

Defendant Noonan is ultimately responsible for implementing and

enforcing proper policies and training.

62.

While Defendant Noonan may delegate some or all of his duties and

responsibilities to subordinates, Defendant Noonan remains ultimately responsible

for ensuring that all of his duties and responsibilities are lawfully and properly
performed.
63.

Defendant Noonan knew or should have known that numerous troopers

assigned to Troop H, Area II, in Franklin County, had repeatedly engaged in

incidents involving the unlawful use of force, as evidenced by citizen complaints,
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internal complaints, and lawsuits that had been filed against said troopers, but failed
to take appropriate and sufficient action to stop the unlawful conduct from repeatedly
occurring.
64.

Specifically, Defendant Noonan, despite having overall supervisory

responsibility for Troop H, failed to assert sufficient supervisory control over Troop
H, which permitted a culture to develop and continue where unlawful force and
brutality was permitted to exist.
65.

Similarly, Defendant Finkle had supervisory responsibility over the Co-

defendants (excluding Defendant Noonan).

66.

Defendant Finkle knew that some or all of the Co-defendants

(excluding Defendant Noonan) routinely engaged in incidents involving the

unlawful use of force, as evidenced by citizen complaints, internal complaints, and
lawsuits that had been filed against said troopers, but failed to take appropriate and
sufficient action to stop the unlawful conduct from occurring.
67.

Defendants Noonan and Finkle knew or should have known, and/or

permitted, the assault committed by the Co-defendants against the Plaintiff but failed
to take appropriate and sufficient action to discipline and and/or retrain the Codefendants.

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68.

As a result of the culture of brutality permitted by Defendants Noonan

and Finkle, the Co-defendants used unlawful excessive force against the Plaintiff,
causing him to suffer serious and permanent injury.
COUNT I
Plaintiff v. Defendants (Excluding Defendant Noonan and Finkle)
Fourth Amendment (Excessive Force) Pursuant to 42 U.S.C. 1983
69.

Paragraphs 1-68 are stated herein by reference.

70.

Claims that police officers used excessive force in an arrest are

analyzed under the Fourth Amendment objective reasonableness standard.

See Graham v. Connor, 490 U.S. 386, 388 (1989).
71.

To state a claim for excessive force under the Fourth Amendment, a

Plaintiff must show that a seizure occurred and that it was unreasonable. See Curley
v. Klem, 499 F.3d 199, 203 (3d Cir. 2007).
72.

The test of Fourth Amendment reasonableness of force used during a

seizure is whether, under the totality of the circumstances, an officers actions are
objectively reasonable in light of facts and circumstances confronting him, without
regard to his underlying intent or motivations. See Kopec v. Tate, 361 F.3d 772, 776
(3d Cir. 2004); Graham, 490 U.S. at 397.
73.

The Defendants provoked the use of force incident involving the

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Plaintiff.
74.

The Defendants used more force than was necessary to overcome the

alleged resistance.
75.

Moreover, the Defendants knew that the techniques used to deliver the

force to the Plaintiff were not generally accepted in law enforcement.

76.

The force used by the Defendants was excessive, and therefore,

unlawful.
77.

As a result of the Defendants unlawful conduct, Plaintiff suffered

serious and permanent physical injuries, pain, suffering, disfigurement, financial

harm, embarrassment, emotional distress, and injury to his familial relationships.
COUNT II
Plaintiff v. Defendants Noonan and Finkle
Fourth Amendment (Supervisory Liability) Pursuant to 42 U.S.C. 1983
78.

Paragraphs 1-77 are stated herein by reference.

79.

There are two ways to establish supervisor liability under 1983: by

showing a supervisor: (1) is responsible for making and maintaining the specific
policies (or lack thereof) that violated the constitutional right; or (2) had knowledge
of and acquiesced in his subordinates constitutional violations. See A.M. v.
Luzerne Cnty. Juvenile Det. Ctr., 32 F.3d 572, 587 (3d Cir. 2004).
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80.

Defendant Noonan is responsible for implementing and maintaining

proper pursuit and use of force policies at PSP that governed or would have governed
the incident involving the Plaintiff.
81.

Defendants Noonan and Finkle knew of, or should have known of, the

unlawful excessive force engaged in by the Co-Defendants.

82.

Defendants Noonan and Finkle acquiesced in and ratified the unlawful

conduct.
83.

As a result of the Defendants unlawful conduct, Plaintiff suffered

serious and permanent physical injuries, pain, suffering, disfigurement, financial

harm, embarrassment, emotional distress, and injury to his familial relationships.
WHEREFORE, Plaintiff respectfully requests that judgment be entered in
his favor as follows:
A.

That this Court declare that the Defendants actions violated Plaintiffs

constitutional rights;
B.

Compensatory damages including but not limited to pain and suffering,

and the financial loss incurred as a result of Plaintiffs injuries.

C.

Punitive damages;

D.

Reasonable attorneys fees and costs; and

E.

Such other financial or equitable relief as is reasonable and just.

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Jury Trial Demand

Plaintiff respectfully requests a trial by jury on all claims/issues in this matter
that may be tried to a jury.

Respectfully Submitted,

_
DEVON M. JACOB, ESQUIRE
Pa. Sup. Ct. I.D. 89182
Counsel for Plaintiff

_____

JACOB LITIGATION
P.O. Box 837, Mechanicsburg, Pa. 17055-0837
717.796.7733 | djacob@jacoblitigation.com

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Date: February 9, 2015