Prior to being granted parole and being released, the plaintiff signed an agreement that as a condition of release the PBPP could search his personal property and residence without a warrant. Exhibits A, B, E of Defendants' Motion for Summary Judgment. Plaintiff further agreed to full participation in anti-drug therapy and to refrain from assaultive behavior. Id.
2. Plaintiff was issued a warning in April of 1992 because of inadequate compliance with his drug treatment responsibilities. Exhibit B of Supplement.
3. Plaintiff was sent a letter on October 9, 1992 from individual defendant McGuire regarding plaintiff's failure to attend a meeting with his parole officer scheduled for October 7, 1992. Exhibit D of Supplement. The letter also informed plaintiff of his obligation to attend an October 19, 1992, or be deemed in violation. Id. Plaintiff attended that meeting. Id.
4. On October 23, 1992, defendant McGuire went by himself to plaintiff's residence. Exhibit B of Motion for Summary Judgment. He was admitted to the residence by plaintiff's father. Id. After being admitted, McGuire went upstairs to plaintiff's bedroom. Id. According to McGuire, plaintiff was hostile to him. Id. According to McGuire, as he attempted to leave plaintiff shoved him against the wall, and then pushed him down the stairs. Id. According to plaintiff, he politely asked McGuire to go down the stairs while he got dressed, and he never touched the defendant. See Com. v. Patterson, M.C. # 93-01-0613 (November 4, 1993) at 46 (Exhibit Attached to Plaintiff's Response to Summary Judgment).
5. Defendant returned to plaintiff's residence with police officers and arrested the plaintiff. Exhibit B of Motion for Summary Judgment. Defendant filed criminal charges against plaintiff for aggravated assault, simple assault, reckless endangerment, and resisting arrest. Exhibit H of Motion for Summary Judgment. A parole revocation hearing was also ordered based on defendant McGuire's evaluation. Exhibit B of Motion for Summary Judgment.
6. Plaintiff was detained at Grateford Prison, and his parole revocation hearing was postponed pending disposition of the criminal charges. Exhibit J of Supplement.
7. On March 4, 1993, the Aggravated Assault charge was dismissed in Common Pleas Court, and the remaining charges were remanded to Municipal Court. Plaintiff's Complaint.
8. On March 31, 1993, the remaining charges were dismissed by the Honorable Felice R. Stack. Plaintiff's Complaint.
9. On April 9, 1993, Plaintiff was released from Grateford Prison. Plaintiff's Complaint.
10. Plaintiff brought this action in May of 1993 under 42 U.S.C. § 1983 for unreasonable search, false arrest, false testimony, and malicious prosecution, 42 U.S.C. § 1981 and various common law causes of action against the Board of Probation and Parole for the Commonwealth of Pennsylvania (the "Board") and his parole agent, Ed McGuire. As to all counts, plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages. Defendants move for summary judgment as to all claims.
11. After the commencement of this lawsuit, plaintiff was re-arrested and recharged on the basis of Defendant McGuire's allegations of assault. Plaintiff was acquitted on all charges. See Com. v. Patterson, M.C. # 93-01-0613 (November 4, 1993) at 46.
12. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Defendants are entitled to summary judgment only if no reasonable resolution of the conflicting evidence and the inference which could be drawn from that evidence could result in a judgment for the plaintiff. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where there is a dispute or disagreement over what inferences reasonably could be drawn from the facts, even if those facts are undisputed, it is improper to grant summary judgment. See Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991). However, "the mere existence of a scintilla of evidence in support of plaintiffs['] position will be insufficient[;] there must be evidence on which the jury could reasonably find for the plaintiffs." Anderson, 477 U.S. at 252.
The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting necessary elements of their case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant has demonstrated such a failure, the burden then shifts to the non-movant to identify which portions of the records support the allegedly unsupported elements. Id.. at 322-23.
13. Plaintiff's claims under 42 U.S.C. §§ 1983 and 1981 for damages against the Board and McGuire in his official capacity are barred by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) (state is not a "person" liable under § 1983); (Eleventh Amendment bars § 1981 damage actions in federal court against states and their officers).
14. The Eleventh Amendment does not bar suits for injunctive relief under 42 U.S.C. §§ 1983 and 1981 when brought against an appropriate state official in his official capacity. Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Plaintiff alleges that he is entitled to injunctive relief, but has not described the relief he is seeking. Summary judgment will be denied as to Plaintiff's claims for injunctive relief against the Board, and Plaintiff will have 10 days from the date of this order to submit a detailed description of the injunctive relief he is seeking against Parole Agent McGuire.
15. Parole and probation officials are entitled to quasi-judicial immunity when engaged in adjudicatory activities, but are only entitled to qualified immunity for their other actions. Thompson v. Burke, 556 F.2d 231, 236-38 (3d Cir. 1977). Plaintiff alleges that McGuire violated his rights by: a) searching his residence without a warrant, b) falsely arresting him and initiating unfounded parole revocation proceedings against him, c) filing false criminal charges against him and d) testifying falsely against him. McGuire is not entitled to absolute immunity as to plaintiff's claims that he illegally searched plaintiff's residence, falsely arrested and initiated unfounded parole revocation proceedings against him, and filed false criminal charges against him, since investigative activities and the initiation of parole revocation proceedings or criminal charges are not part of a parole officer's quasi-judicial duties. See Shea v. Smith, 966 F.2d 127 (3d Cir. 1992); Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989); Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986); Thompson, 556 F.2d at 237-38.
16. Witnesses in a criminal prosecution are absolutely immune from damages under 42 U.S.C. § 1983. Taylor v. Robertson, 703 F. Supp. 392 (E.D. Pa. 1989); McArdle v. Tronetti, 961 F.2d 1083 (3d Cir. 1992). Therefore, summary judgment is granted as to plaintiff's claim that McGuire violated his constitutional rights by testifying falsely at plaintiff's criminal trial.
17. To determine whether McGuire is entitled to qualified immunity, I must first address the merits of the underlying constitutional claims, and then determine whether the right alleged to have been violated was "clearly established." See Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. at 1793 (1991) ("A necessary concomitant to the determination of whether the constitutional right asserted by the plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.")
18. I find that Parole Agent McGuire did not violate Patterson's Fourth Amendment rights when he searched Patterson's residence without a warrant because Patterson had consented to such a search as a condition of his parole. A search is valid in the absence of warrant or probable cause if a person with a protected privacy interest in the premises voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Patterson does not deny that he voluntarily signed the parole conditions document.
19. Even if plaintiff's consent were invalid, I find that the defendant is not liable for the search of plaintiff's residence. In Griffin v. Wisconsin, the Supreme Court included warrantless searches by probation officers among the exceptions to the Fourth Amendment prohibition against searches and seizures without warrants based on probable cause because the probation system involves "special needs, beyond the normal need for law enforcement, [which] make the warrant and probable cause requirement impracticable". Griffin, 483 U.S. 868 at 873-74, 875
; see also New Jersey v. T.L.O., 469 U.S. 325, 351, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (Blackmun, J., concurring in the judgment) (authorizing searches of student property without warrant or probable cause); Camara v. Municipal Court, 387 U.S. 523, 538, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967); New York v. Burger, 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987).
The Court held that the search at issue in Griffin was valid because it was conducted in accordance with a valid regulation. The Griffin Court declined to address whether a search of a probationer's home is valid when there are "reasonable grounds" to believe there is contraband present, but in the absence of a valid regulation permitting such searches. Griffin, 483 U.S. at 880.
The Court held that courts must look to state law to determine whether the search in question complied with state regulations. Griffin, 483 U.S. at 875. Federal courts have upheld searches by Pennsylvania parole officers of their clients' homes upon only reasonable suspicion that they will find evidence of parole violations, despite the absence of a regulatory structure like that in Griffin, because Pennsylvania case law had permitted such searches. See United States v. Hill, 967 F.2d 902 (3d Cir. 1992); Shea v. Smith, 966 F.2d 127 (3d Cir. 1992); Bey v. Hines, 1993 U.S. Dist. LEXIS 145, 1993 WL 5494 (E.D. Pa); Torres v. Daly, 1993 U.S. Dist. LEXIS 12578, 1993 WL 349382 (E.D. Pa. 1993); Jarvis El v. Pandolfo, 701 F. Supp. 98 (E.D. Pa. 1988).
The Pennsylvania Supreme Court recently held that, in the absence of a regulatory structure like that in Griffin, searches of parolees homes based upon less than probable cause are unconstitutional. Com. v. Pickron, 634 A.2d 1093 (Pa. 1993). Accordingly, plaintiff has stated a constitutional claim for an improper search.
20. Because the Supreme Court in Griffin declined to address the constitutionality of warrantless searches of parolees' homes in the absence of a regulatory framework, and because courts of this Circuit had allowed such searches based upon Pennsylvania judicial authorization of such searches, McGuire had no reason to know, in October of 1992, that the search was unconstitutional. Therefore, while the search was unconstitutional, Officer McGuire is entitled to qualified immunity because the contours of the constitutional right which he is alleged to have violated was not "clearly established" at the time of the action. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
21. Plaintiff's third count of his complaint alleges that "by means of their unlawful detention of Plaintiff and the malicious charges placed against Plaintiff, Defendants deprived Plaintiff of his liberty without due process of law in violation of the U.S. and Pennsylvania Constitutions and 42 U.S.C. § 1983." In the Third Circuit, false arrest and malicious prosecution have been treated as separate constitutional torts; plaintiffs have been able to prevail under 42 U.S.C. § 1983 by proving the elements of a state malicious prosecution tort as a violation of the plaintiff's substantive due process rights arising out of the Fourteenth Amendment, while a false arrest charge stated a claim under either the Fourth or Fourteenth Amendments. See Lippay v. Christos, 996 F.2d 1490, 1496, 1501 (3d Cir. 1993); Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988); Patzig v. O'Neil, 577 F.2d 841, 849 (3d Cir. 1978).
22. The Supreme Court in its recent decision in Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994), has now signaled emphatically that, to whatever extent the initiation of criminal proceedings by a law enforcement officer constituted a constitutional violation, the Fourteenth Amendment could not serve as the source of the right violated. A plurality of four asserted that, because the type of deprivations alleged by the plaintiff could properly have been addressed under the prohibitions against unreasonable seizure proscribed by the Fourth Amendment, if any claim could be brought at all for restrictions on liberty occasioned by the initiation of legal proceedings it must be brought under that Amendment. See id. at 810-814 (Rehnquist, C.J. announcing the judgment of the court, joined by O'Connor, J., Scalia, J., and Ginsburg, J.).
Because the plaintiff in Albright declined to sue under the Fourth Amendment, Chief Justice Rehnquist declined to specifically address in his opinion whether plaintiff's claim could have been properly brought under the Fourth Amendment, or what the nature of possible violations could be under the Fourth Amendment. However, nothing in his opinion, or the opinion concurring in the judgment by Justice Ginsburg, suggests that the circumstances of the prosecution of the plaintiff in the case before me, independent of his arrest, would constitute a constitutional violation.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.