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KIS v. COUNTY OF SCHUYLKILL

October 25, 1994

OLEG KIS, Plaintiff,
v.
COUNTY OF SCHUYLKILL, CITY OF POTTSVILLE, JOSEPH MULDOWNEY, JOSEPH MURTON, RONALD GRIFFITHS, FRANK P. SPLEEN, DALE REPP AND DAVID KURTZ, Defendants.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 October 25, 1994

 This 42 U.S.C. § 1983 action is brought by plaintiff, Oleg Kis, against local governments and local government officials in their official and individual capacities. *fn1" He filed this action on October 29, 1993, alleging violations of his civil rights in six separate counts. *fn2" The court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court now are defendants' Motions for Summary Judgment, filed on August 1, 2, and 12, 1994. *fn3"

 I. STANDARD OF REVIEW

 Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:

 
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 "The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).

 II. FACTUAL BACKGROUND

 Discovery is closed in this matter, and the essentially undisputed facts can be summarized as follows. *fn4"

 In September 1989, plaintiff, Oleg Kis, purchased the residence at 509 North Seventh Street in Pottsville at a tax sale. On or about November 13, 1990, the City of Pottsville, through its deputy health officer, Frank P. Spleen, sent a notice to plaintiff to clean up the weeds and debris surrounding his dwelling. *fn5" The notice, which was sent to 509 North Seventh Street by both regular and certified mail, incorrectly addressed the plaintiff as "Oley Kiss," rather than "Oleg Kis." *fn6" Mr. Kis, allegedly believing that the notices were not addressed to him, returned the notice sent by regular mail unopened and refused to accept the notice sent by certified mail.

 On July 2, 1991, the City, through Spleen, once again sent a notice to Kis to clean up the areas surrounding his dwelling. Once again, the notice was sent by both regular and certified mail and was addressed to "Oley Kiss" at 509 North Seventh Street. Mr. Kis was apparently not in residence at the property at the time the notices arrived, so the certified notice was returned unclaimed. The notice sent by regular mail was also eventually returned unopened. *fn7"

 On July 22, 1991, Spleen filed Citation No. 160844 with the office of District Justice Charles V. Moran. *fn8" The citation incorrectly named Mr. Kis as "Oley Kiss" and charged a sanitation offense--"failure to have property conform to sanitation rules for exterior of property." It included plaintiff's correct address at 509 North Seventh Street and listed penalties of $ 129.00. *fn9" The citation, along with Summons # 160844, was mailed to plaintiff's above address, but once again Kis returned unopened all mail addressed by the City to "Oley Kiss." On September 10, 1991, another copy of the citation was mailed to plaintiff's address. It was returned with the notation, "Return to Sender. Nobody by this name at this address." Because of his failure to respond to the two citations, District Justice Moran issued a warrant for plaintiff's arrest on September 23, 1991. The warrant once again identified Oleg Kis as "Oley Kiss" but listed his correct address. The warrant was forwarded to the Schuylkill County Sheriff's Department for service.

 On the evening of Wednesday, October 30, 1991, defendants Detective Joseph Murton and Deputy Sheriff Ronald Griffiths served plaintiff with the arrest warrant at his home. Plaintiff protested the arrest and showed Murton and Griffiths identification that indicated that his name was spelled "Oleg Kis," not "Oley Kiss." Plaintiff was nevertheless arrested and transported to Justice Moran's courtroom. *fn10" Justice Moran showed the plaintiff the underlying citation and asked plaintiff to enter a plea. Plaintiff responded that his name was not "Oley Kiss" but was "Oleg Kis," stated that he had never received the citation, and demanded to speak to an attorney. Justice Moran allegedly told plaintiff that he was not a lawyer referral service and directed plaintiff to either enter a plea of guilty or not guilty and post bond, or face incarceration. Plaintiff replied, "I guess you'll have to take me to prison." Justice Moran ordered Mr. Kis incarcerated and issued a commitment order to the Schuylkill County Prison. *fn11"

 Pursuant to the commitment order, Griffiths and Murton transported Mr. Kis to the Schuylkill County Prison. Upon arriving at the prison facility, plaintiff informed prison officials that he wished to speak to an attorney. *fn12" He was given the opportunity to make a phone call, told he would meet with a prison counselor, and placed in isolation for two days. *fn13" Mr. Kis had 838 dollars on his person when he was arrested. While in isolation, Mr. Kis claims that he was the subject of an unwanted sexual advance from another inmate and that the prison guard took no action in this regard. On Thursday, October 31, 1991, Mr. Kis met with the prison counselor and informed him that he wished to post bail. *fn14" He was directed to make a written request to deduct $ 129 from his funds for that purpose. Mr. Kis claims to have made such a written request on both the afternoon of Thursday, October 31, and Friday, November 1. *fn15" See Deposition of Oley Kis at 117. Mr. Kis also claims that he was denied medical attention *fn16" and use of the phone during his two day isolation, despite requests for both. He further alleges that he was not given access to an attorney during his period of isolation. On Friday, November 1, Mr. Kis told prison officials that he was going to begin a hunger strike unless his demands were met. *fn17"

 Two days after his arrest, on the evening of Friday, November 1, he was taken from isolation and placed with the general population. As per prison policy, he was allowed to make phone calls after being placed with the general population and made several calls on that Friday, Saturday and Sunday. *fn18" His bail request was processed on Monday, November 4, 1991, and he was released on that date at approximately 12:30 p.m.

 The trial on the sanitation charge was scheduled for November 27, 1991. On November 7, Mr. Kis filed a motion to change the venue of the trial to another magisterial district. *fn19" The motion was granted, and the trial was held on December 23, 1991, in front of District Justice James R. Ferrier, of Magisterial District No. 21-3-03. On January 16, 1992, Justice Ferrier issued a decision dismissing the citation against Mr. Kis because he had been incorrectly identified as "Oley Kiss" on the citation. On January 22, 1992, Spleen filed another citation alleging the same violation as the dismissed citation and this time naming "Oleg Kis." It was issued on January 30, 1992, but was withdrawn shortly thereafter.

 III. DISCUSSION

 (A) Actions Under 42 U.S.C. § 1983

 To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right or privilege secured by the Constitution or laws of the United States committed by a person acting under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664-65, 88 L. Ed. 2d 662 (1986); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). The plaintiff raises his claims under the Fourth, Fifth, *fn20" Sixth and Fourteenth Amendments. *fn21" No party disputes that all of the defendants are state actors. Therefore, the resolution of the motion for summary judgment rests on whether the complaint, answers, depositions and affidavits show that there is a genuine issue of material fact as to whether any of the defendants deprived plaintiff of his constitutional rights.

 Plaintiff has brought claims against the individual defendants in both their official and individual capacities. Individual capacity suits seek to impose personal liability upon a government official; damages are recoverable from the official's personal assets. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). To the extent that plaintiff is suing the individual defendants in their official capacities, his claims are the equivalent of claims against the municipalities themselves. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Accordingly, we will discuss claims against the individual defendants in their individual capacities separately, while reserving discussion of their liability in their official capacities until the liability of the respective municipalities is discussed.

 (B) Detective Murton and Deputy Sheriff Griffiths

 In Count I, plaintiff alleges that Detective Murton and Deputy Sheriff Griffiths violated his Constitutional rights under 42 U.S.C. § 1983 by falsely arresting him. *fn22" The central issue in determining liability in a § 1983 action based on a claim of false arrest is "whether the arresting officers had probable cause to believe the person arrested had committed the offense." Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). Whether the person actually committed the charged offense is irrelevant, id., as is the outcome of the prosecution of the state court charges. See Roa v. City of Bethlehem, 782 F. Supp. 1008, 1015 (E.D. Pa. 1991).

 Probable cause to arrest exists where the arresting officer has knowledge of facts and circumstances sufficient to permit a prudent person of reasonable caution to believe that the person arrested has committed an offense. Huffaker v. Bucks County District Attorney's Office, 758 F. Supp. 287, 290-91 (E.D. Pa. 1991). Furthermore, "law enforcement authorities are permitted and expected to draw reasonable inferences based upon their knowledge and experience." Id. at 291 (discussing U.S. v. Filiberto, 712 F. Supp. 482, 485 (E.D. Pa. 1989)).

 It is well-settled that probable cause to arrest generally exists when a police officer makes an arrest pursuant to a warrant which meets the requirements of the Fourth Amendment. Baker v. McCollan, 443 U.S. 137, 144, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979); Graham v. Connor, 490 U.S. at 389. Furthermore, an officer making an arrest on the basis of such a facially valid warrant is under no duty "to investigate independently every claim of innocence, whether the claim is based on mistaken identity," or otherwise. Baker, 443 U.S. at 144-45. Law enforcement officers who arrest solely on the basis of such a warrant are immune from suits alleging a Constitutional violation. Id. at 143-144; Graham, 490 U.S. at 395; Druckenmiller v. United States, 548 F. Supp. 193, 194-95 (E.D. Pa. 1982) ("The law is clearly established that law enforcement officers who effect an arrest pursuant to a facially valid arrest warrant are immune from suit alleging a constitutional deprivation.").

 The gravamen of plaintiff's claims against Detective Murton and Sheriff Griffiths, however, is that the arrest warrant as issued was not facially valid, and that he was thus falsely arrested pursuant to it. The basis for his claim is twofold. First, plaintiff alleges that the warrant is invalid because his name was spelled incorrectly. Second, plaintiff claims that any arrest for violation of a sanitation ordinance is invalid under the Pennsylvania Code and Rules of Criminal Procedure.

 (1) Misspelled Name

 The requirements for the execution of a valid arrest warrant are clear. The arrest warrant must contain "the name of the defendant or, if his name is unknown, any name or description by which he can be described with reasonable certainty." Fed. R. Crim. P. 4(c)(1). Only in this way can an arrest warrant meet the particularity requirements of the Fourth Amendment. Courts have long held that "John Doe" warrants are insufficiently particular to meet this standard. United States v. Doe, 703 F.2d 745, 747 (3d Cir. 1983). Beyond that, however, a warrant that correctly names the person to be arrested generally satisfies the requirements of the Fourth Amendment and no other description of the arrestee is usually necessary in the warrant. Powe v. Chicago, 664 F.2d 639, 645 (7th Cir. 1981); Cooper v. City of Chester, 810 F. Supp. 618, 621 (E.D. Pa. 1992). On the other hand, a warrant that incorrectly names the person to be arrested will "usually be deemed insufficient to meet the fourth amendment's particularity requirement unless it includes some other description of the intended arrestee that is sufficient to identify him." Powe, 664 F.2d at 645.

 While we recognize the significance of the holdings above, we feel that far more relevant to the case before us is the Third Circuit holding that a mere technical error on the face of an arrest warrant will not automatically invalidate the warrant. United States v. Carter, 756 F.2d 310 (3d Cir. 1985), cert. denied 478 U.S. 1009, 106 S. Ct. 3307, 92 L. Ed. 2d 721 (1986). See also United States v. Benavides, 854 F.2d 701 (5th Cir. 1988). In Carter, the defendant contended that an arrest warrant was invalid because the date of the offense was incorrectly stated as September 14, 1983, instead of September 7, 1983. The Third Circuit affirmed the ruling of the district court that such a mistake was a technical error and did not invalidate the otherwise valid warrant. The Third Circuit indicated that "the true inquiry . . . is . . . whether there has been such a variance as to 'affect the substantial rights' of the accused." Carter, 756 F.2d at 313 (quoting Cromer v. United States, 78 U.S. App. D.C. 400, 142 F.2d 697 (D.C. Cir. 1944)). The Court further held that, in the case of a technical error, it was necessary for the party alleging invalidity of the warrant to prove that "the misstatement was made intentionally or with reckless disregard for the truth." Id. (discussing Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)).

 Plaintiff claims that under Powe, because his name was misspelled, the arrest warrant issued for him was invalid. Plaintiff also alleges that he was wrongly arrested because even after he showed Detective Murton and Deputy Sheriff Griffiths identification indicating the correct spelling of his name, they nevertheless arrested him. It is true that the arrest warrant incorrectly spelled plaintiff's name as "Oley Kiss" instead of "Oleg Kis." However, the uniqueness of the name and the listing of plaintiff's correct address on the warrant indicated to Detective Murton and Deputy Sheriff Griffiths that the arrest warrant was intended for Mr. Kis and no one but Mr. Kis. Furthermore, Detective Murton was able to identify Mr. Kis at the scene as being the one to whom the warrant was directed since he was Mr. Kis's next door neighbor. Clearly, Detective Murton and Deputy Sheriff Griffiths had probable cause to believe, then, that they were arresting the correct person.

 Significantly, Mr. Kis has never alleged with any seriousness that he was in fact not the person for whom the warrant was meant, and he admits that the address on the warrant is his own. We find it transparently disingenuous that the plaintiff repeatedly chose not to accept official mail from the City of Pottsville and the Office of the District Justice that was obviously directed to him and is now further seeking to exploit a minor misspelling into a hypertechnical claim that the arrest warrant is invalid.

 Under the holding of Carter, we fail to see how this misspelling had any effect whatsoever on the "substantial rights" of Mr. Kis. Carter, 756 F.2d at 313. Mr. Kis intimates that he was given no notice of any wrongdoing on his part before he was arrested. The numerous notices that were sent to him by regular and certified mail from the City of Pottsville, and subsequently returned to the City by him, belie his claims that he had no indication that there was anything wrong. Moreover, Mr. Kis has never suggested that the misspelling was done intentionally or with "reckless disregard for the truth," id., and it is clear from the evidence that it was not. Such a misspelling obviously is a minor technical error that has no bearing on the facial validity of the arrest warrant. To hold otherwise would make a mockery of the Fourth Amendment.

 Plaintiff's reliance on Powe is misplaced. In Powe, the police arrested the wrong person three times on the same arrest warrant because they were uncertain of the name of the arrestee. The court held that where the authorities do not know or are uncertain of the name of the arrestee, the name used in the warrant is arbitrary, and the warrant must give some other description of the intended arrestee sufficient to identify him. Powe is inapplicable to our situation because the court was dealing with a case of mistaken identity. Here, the authorities were certain of the name of the intended arrestee, they simply misspelled it. In fact, the Powe court itself distinguished its holding from the situation that is presently before us:

 
A case may be hypothesized in which the authorities responsible for preparing the warrant have good reason to believe that the name on the warrant is the real name of the intended arrestee, and have no reason to suspect otherwise. Our holding is not addressed to such a case. In this case our holding is simply that where, as is alleged here, the authorities had reason to suspect that the name placed on the warrant was not the real name of the intended ...

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