Declaration. Obvious questions thus arise about which version of the criminal complaint/warrant the arresting defendants had, who added the address "139 Charles St," when and why this was done, upon what evidence that it was thought to be the address of Billy Brown, and the like. Examining the evidence on these questions should lead to a conclusion about the reasonableness of arresting William Brown at his Charles Street address when there are conflicting versions of the warrant before the court which unmistakably show a different address.
Second, the photograph of Billy Brown that the arresting defendants had will be a pivotal piece of evidence. The warrant was issued for William "Billy" Brown, black male, age 40. The Federal Defendants state the arrest warrant in question did not list a birth date for the suspect, but that the incident report prepared after the stabbing listed the assailant's birth date as November 9, 1948. See, e.g., Cocco Decl., attached to Fed. Defs' Br., P 4. The person arrested was William Brown, black male, born November 19, 1949. Brown Declaration, Ex. 1 to Pls' Br., P 1.
In arresting William Brown instead of Billy Brown, asking for identification conceivably would not have altered the arresting defendants' course; on the contrary, it would have reinforced their belief. The other identifying characteristics they could examine on the spot with the information they had were race, sex, and age -- and these match the criminal complaint/warrant. To this point, if instances of mistaken identity in arrests can be understood, they can be understood in cases like this, where an innocent person shares a common first and last name, race, sex, and age with a fugitive. If the arresting officers had no other information, this would be a much easier case.
With a photograph, however, the reasonableness of mistaken identity are narrowed in this sense: the person arrested should bear a resemblance to the person in the photograph sufficient to lead a reasonable law enforcement officer to conclude they were the same person. The Federal Defendants state that plaintiff matched the photograph they had. Defs' Br., Cocco Decl. P 7; Holland Decl. P 7; Holeczy Decl. P 7. Plaintiff asserts that he looks nothing like the man in the photograph. Pls' Br. Ex. 1, Brown Decl. PP 7-8. Officer Stewart in her affidavit makes no affirmative statement that plaintiff Brown matched the photograph. She simply states that "William Brown asserted that the photograph was of a bearded person and he did not have a beard. In fact, he had a slight beard and moustache." Stewart Affidavit at 1, attached to Motion to Dismiss and/or for Summary Judgment, Doc. No. 18. This issue plainly is not suited for summary judgment. As the Third Circuit said in analogous circumstances, "to the extent that the presence or absence of probable cause depended on the resemblance of [plaintiff] to the bank surveillance photographs taken at the time of the robbery, the question necessarily becomes a factual one for jury determination." Deary v. Three Un-Named Police Officers, 746 F.2d 185, 191 (3d Cir. 1984).
Moreover, there is considerable confusion surrounding this important piece of evidence. In his July 11, 1995 declaration to this court, defendant Robert Cocco supplied a mug shot of a black male and stated that it was the photograph the arresting officers had on the day of the arrest. See Fed. Defs' Br., Ex. 1 to Ex. A. We now know this is not accurate; in reality, the photograph attached to the July 11 declaration was William Brown's mug shot from the arrest in question. In a September 6, 1995 supplemental declaration, Cocco notified the court of this discrepancy and stated that he was unable to find the photograph, ostensibly of Billy Brown, that the arresting defendants had at the time of the arrest. Doc. No. 17, P 4.
On November 29, 1995, Cocco filed an addendum to his supplemental declaration. Doc. No. 24. In it he states that he "recently located the actual photograph that was provided by the City of Pittsburgh Police Department with the arrest warrant at the time of plaintiff Brown's arrest." Id. P 4. He attached a copy of the photograph.
The problem has not been solved. William Brown stated that the photograph the arresting defendants had at the time of the arrest showed a bearded black male. When he pointed out that he did not have a beard, they responded that he shaved it off. Brown Decl. P 7-8. As shown above, Officer Stewart's affidavit corroborates this account, stating that photograph used at the arrest showed a bearded man, that Brown protested for this reason, and that Brown had a slight beard and moustache. Stewart Aff., attached to Doc. No. 18. The photograph Cocco attaches as the actual photograph from the time of the arrest, however, unmistakably shows a clean shaven black man. Doubts thus remain about whether this new submission indeed was the photograph the arresting defendants had at the time of the arrest, since its accuracy is contradicted not only by plaintiff, but by defendant Stewart.
We presume nothing sinister from this occurrence (though it does say something about the care with which the defendants maintain evidence and testify about it to the court). Nonetheless, the remaining questions as to the existence and depiction of the original photograph leaves open a large question as to reasonableness. These questions and others, such as whether the arresting officers knew the height, weight, build, or other identifying characteristics of Billy Brown, and whether William Brown met that description, must await trial for resolution.
Questions as to these factors distinguish this case from Miller v. District of Columbia, Civ. A. No. 83-1492 (D.D.C. 1984), on which the Federal Defendants heavily rely. Miller is a mistaken arrest case involving a joint U.S. Marshals-District of Columbia Metro Police fugitive task force. There, the address on the arrest warrant matched Miller's address, the police had only a general description on the warrant and no photograph, and before the arrest was carried out, the arresting officers sought to confirm her identity with a knowledgeable police officer. Unlike Miller, there are genuine questions about these important facts here.
Thus, with regard to the arrest, the court sees qualified immunity resting on the determination of the reasonableness of (1) making an arrest on Charles Street rather than Arch Street, and (2) in whether the photograph possessed by the arresting officers depicted or resembled plaintiff William Brown. Findings as to these facts are necessary before the court can reach the issue of qualified immunity on the arrest: namely, under the facts as finally established, whether a reasonable officer would have arrested plaintiff William Brown.
d. Federal Tort Claims Act
The Federal Defendants argue that plaintiffs' exclusive remedy lies in a claim of negligence under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Fed. Defs' Br. at 16-18. Plaintiffs' claims are cognizable under the Constitution, however, and they have not made any tort claims, so this argument is not relevant.
2. Stewart's Motion to Dismiss/for Summary Judgment
Defendant Stewart's motion rests on the same qualified immunity argument advanced by the Federal Defendants. For the reasons stated above, Stewart's motion will be denied.
B. County Defendants' Motion to Dismiss
The position of the County Defendants and their role in the wrongdoing alleged by plaintiff Brown also dictates that the claims against each should be examined separately. "Plaintiff Brown's claim against Warden Kozakiewicz is based upon the Warden's failure to take action for the wrongful incarceration and for failure to take action when William was assaulted and battered by Correctional Officer Gricar." Pls' Br. at 12. As for Gricar, Brown alleges excessive and unnecessary force. Id. at 13. County Defendants respond that "they cannot be found liable for the incarceration of the plaintiff due to the fact that they did not owe the plaintiff a duty to investigate his claim of misidentification or to release the plaintiff because of his statements that he was not the person who was the subject of the arrest warrant." Brief in Support of Motion to Dismiss, Doc. No. 16, ("County Defs' Br.") at 5-6. County Defendants' brief does not address the allegation that Gricar physically abused Brown.
1. Warden Kozakiewicz
a. Failure to Investigate Unlawful Detention
Baker v. McCollan, quoted above, establishes that the Constitution does not provide relief for every case of mistaken detention. 443 U.S. 137, 145-46, 99 S. Ct. 2689, 61 L. Ed. 2d 433. Yet the Court also remarked in dictum that "mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of 'liberty . . . without due process of law.'" Id. at 145. The Third Circuit interprets Baker and provides further guidance in a recent case.
A false imprisonment claim under 42 U.S.C. § 1983 is based on the Fourteenth Amendment protections against deprivations of liberty without due process of law. Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). The Court in Baker made it clear that an arrest based on probable cause could not become the source of a claim for false imprisonment. Id. at 143-44. On the other hand, where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest. . . . A false imprisonment claim under § 1983 which is based on an arrest made without probable cause is grounded in the Fourth Amendment's guarantee against unreasonable seizures.
Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Thus, if a person was arrested without probable cause, his or her detention may implicate the Fourth Amendment. If he or she was arrested with probable cause, the detention may amount to a deprivation of liberty without due process.
The appellate courts tell us that the Constitution has a tolerance for errors in law enforcement. In some cases, the judge and jury at trial -- and no sooner -- supply the means by which innocent persons' rights to due process are vindicated. But due process and other constitutional protections would be frail indeed if the means for correcting mistakes of identity were available and easily applied, but were not because of a measured avoidance of responsibility to do so.
Brown alleges that he was detained for almost two months while the means to positively identify him were available to prison officials. Since a mug shot of Billy Brown apparently existed, he must have been previously arrested, and so his fingerprints could have been easily compared with William Brown's fingerprints. William Brown also states that he brought his complaint of mistaken identity to Kozakiewicz, who did nothing. Brown Decl., P 19. If the number and content of Brown's protests were substantial, and the audience included Kozakiewicz, Brown may be able to state a constitutional claim.
We emphasize that we make no findings of fact as to such responsibility. We do find as a matter of law, however, that mere detention based on mistaken identity may work a deprivation of liberty without due process, or constitute an unreasonable seizure prohibited by the Fourth Amendment.
We also note that since plaintiff has named Kozakiewicz as a defendant in his personal capacity, plaintiff must show personal responsibility and involvement (or lack of it) by Kozakiewicz for this claim to succeed. As with the arresting defendants, resolution of this claim must await trial.
b. Failure to Supervise Gricar
Brown implicates Corrections Officer Gricar for a single incident: a hard slap to the head on May 10, 1993. Compl. P 20; Brown Decl. P 14; Pls' Br. at 12-13. He argues that Warden Kozakiewicz should be liable for "failure to take action when [he] was assaulted and battered by Correctional Officer Gricar." Pls' Br. at 12. Kozakiewicz responds that he is entitled to qualified immunity because his actions violated no clearly established constitutional right. County Defs' Br. at 9-10.
Supervisory liability exists under section 1983. It is based not on grounds of respondeat superior, but rather on actual knowledge and acquiescence. See, e.g., Baker v. Monroe Township, 50 F.3d 1186, 1194 (1995); Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Thus, William Brown may properly state a claim against Kozakiewicz based on the actions of a subordinate if Kozakiewicz knew of and condoned or ignored Gricar's actions.
The next step in our analysis is whether Gricar's actions state a constitutional claim. If they do not, neither Kozakiewicz nor Gricar should remain in the case.
Graham v. Connor, 490 U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989) dictates precision in identifying the source of constitutional right being invoked under section 1983 analysis. In the context of conditions or restrictions of pretrial detention, the Supreme Court has decided that pretrial detainees' constitutional rights are protected by the due process clause. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). The Court has also expressly stated that "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment." Graham, 490 U.S. at 395 n. 10. Thus, the validity of Brown's claim involving the May 10, 1993 slapping incident is based on the degree to which it can be equated with punishment.
Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992), settles this question. Hudson involved a claim by a Louisiana inmate under section 1983 against three guards who punched and kicked him, resulting in bruises, swelling, and loosened teeth. Though there is a de minimis test applied to prison officials' physical contact with inmates, the Court stated that "in the excessive force context, society's expectations are different [than in the conditions-of-confinement context]. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident." 503 U.S. at 9. Thus the extent of Brown's injuries, which by his own admission were slight, provide no basis for questioning the validity of his claim of excessive force at this phase of the case.
It is true that Hudson involved the Eighth Amendment rather than the due process clause, and a convicted prisoner rather than a pretrial detainee. Yet these factors only add more weight to our application of Hudson. There of course is no constitutional problem in punishing a person adjudicated as guilty, so long as the punishment comports with the Eighth Amendment. By contrast, under the due process clause, pretrial detainees may not be subjected to conduct that is equivalent to punishment, because they have not been adjudicated as guilty. Bell v. Wolfish, 441 U.S. at 535 n. 16. If a convicted prisoner therefore is constitutionally protected against malicious force even in the absence of significant injury, then the same protection should be even more readily available to a person to whom no guilt has attached.
Having determined that there are no threshold infirmities to plaintiff Brown's claim against Kozakiewicz for failure to supervise, we will deny the latter's motion to dismiss.
2. Corrections Officer Gricar
Gricar does not challenge plaintiff Brown's claim of excessive force against him personally. Accordingly, this claim remains for trial.
C. Arresting Defendants' Motions as to Irene Kuzak
Plaintiff Kuzak claims that the arresting defendants deprived her "of her right to be free from unreasonable searches and seizures by wrongfully charging her with hindering apprehension. Because the officers deliberately and unlawfully executed the warrant against a man they knew or should have known was misidentified, Irene Kuzak's right to be free from unreasonable searches and seizures in her home were violated." Pls' Br. at 9-10. Federal Defendants argue that they had probable cause to arrest Kuzak because her actions when she answered the door on May 6, 1993 on their face constitute probable cause to believe that she violated 18 Pa. Cons. Stat. Ann. § 5105(1) and (5).
Federal Defendants assert that Kuzak both attempted to hide William Brown in her apartment and falsely informed them he was not home.
On one hand, law enforcement officers with probable cause to make an arrest, even if they arrest the wrong person, have the right to perform acts incident to the arrest which might otherwise be unconstitutional, such as carrying out searches. See, e.g., U.S. v. Hill, 401 U.S. at 804-805. Again, the mere fact that Kuzak was arrested incident to an arrest based on mistaken identity raises no constitutional violation.
This is another matter we cannot resolve on summary judgment, however, because of disputed facts. Federal Defendants claim only that Kuzak "became confrontational and denied that William Brown was in the residence." Declaration of Robert Cocco P 5, attached to Memorandum of Law in Support of Motion to Dismiss, or in the Alternative, for Summary Judgment, Doc. No. 7, in Civil Action No. 95-867; Decl. of Stanley Holland P 5; Decl. of Paul Holeczy P 5 (both verbatim of Cocco). Kuzak states in her declaration that the arresting defendants demanded Billy Brown, and that her husband has never been known by that name. She therefore told the defendants she did not know anyone by that name. Kuzak Decl., PP 4-8, attached to Pls' Br. Thus the court is presented with incomplete information about the interaction between Kuzak and the arresting defendants -- defendants do not provide enough detail for the court to assess probable cause for Kuzak's arrest -- and genuine conflict of material fact in how the arresting defendants named the fugitive they were seeking.
Moreover, the probable cause for Kuzak's arrest will be influenced by the reasonableness of the decision to seek Billy Brown at 139 Charles Street, rather than Arch Street. If a reasonable officer would not have proceeded to 139 Charles Street, the stage would not have been set for the confrontation with Kuzak. Thus, the probable cause for Kuzak's arrest is also tied up in the arresting defendants' decision to serve the warrant at 139 Charles Street. Our discussion above demonstrates that this is another fact issue we cannot resolve on summary judgment.
Accordingly, the arresting defendants' motions as to Kuzak will be disposed of in the same manner as those filed against William Brown.
In accordance with the accompanying memorandum opinion:
1. The Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. No. 9) by defendants' Paul Holeczy, Robert Cocco, and Stan Holland is GRANTED with regard to plaintiffs' claims under 42 U.S.C. § 1985; the balance of the motion is DENIED. Plaintiffs may amend their complaint within twenty days from the date of this order, if they so choose, to remedy the defect in their section 1985 claim identified in the memorandum opinion.
2. The Motion to Dismiss and/or for Summary Judgment of defendant Beverly Stewart (Doc. No. 18) is DENIED.
3. The Motion to Dismiss (Doc. No. 15) of defendants Charles Kozakiewicz and Joe Gricar is DENIED.
In addition, the following pretrial schedule is imposed:
4. The parties shall complete discovery by April 19, 1996. All interrogatories, requests for production, requests for admission, and notices of deposition shall be served with sufficient time to allow responses to be made before the period for discovery closes.
5. Plaintiffs' pretrial narrative statement, conforming to Local Rule 16.1.4.A, shall be filed by May 9, 1996.
6. Defendants' pretrial narrative statements, conforming to Local Rule 16.1.4.B, shall be filed by May 29, 1996.
7. Material facts not identified in the pretrial narrative statements may be excluded upon objection or sua sponte. Witnesses or exhibits not identified in the pretrial narrative statements shall not be presented at trial. Plaintiffs should use numbers to designate exhibits; defendants should use letters.
8. The parties shall not amend or supplement their pretrial narrative statements without leave of court.
9. A pretrial conference will be held on June 21, 1996 at 2:00 p.m., Room 1008, United States Courthouse and Post Office, Pittsburgh, Pennsylvania. Trial counsel must attend. Counsel shall be prepared, and have appropriate authority, to discuss settlement at the conference. Counsel must also provide the Court with an estimate of the number of days required for trial.
SO ORDERED this 11 day of January, 1996.
ROBERT J. CINDRICH
United States District Judge