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ROWE v. ROMANO

September 23, 1996

MILTON ROWE
v.
RALPH ROMANO and RAMON RIVERA



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 SEPTEMBER 23, 1996

 Plaintiff Milton Rowe ("Rowe") instituted this 42 U.S.C ยง 1983 action to recover damages for his alleged false arrest and imprisonment by Defendants Ralph Romano and Ramon Rivera, members of the Allentown Police Department. Defendants now seek summary judgment on Rowe's claims. Because Rowe agrees that Officer Romano was not involved in either his arrest or his detention, we grant summary judgment as to him and address the merits of the instant Motion only with respect to Defendant Rivera. For the reasons that follow, the Motion is granted.

 BACKGROUND

 This action concerns Plaintiff Rowe's arrest and subsequent detention for the February 14, 1994 robbery of Hondo's Bar ("Hondo's") in Allentown, Pennsylvania. At approximately 3:30 p.m. on this date, an African-American male jumped over the counter at Hondo's, yelled "this is a robbery," and indicated that he had a gun under his overcoat. The man then grabbed two money bags resting either in or near the cash register and ran out the door. At the urging of the barmaid Donna Shull ("Shull"), two patrons, Hiram Nieves ("Nieves") and Juanita Toney ("Toney"), raced after the fleeing robber. Nieves eventually chased the robber down and, after a struggle, wrested the money bags from him. The robber fled the scene.

 Allentown Police Officer Ramon Rivera ("Rivera") responded to the dispatcher's report of the armed robbery at Hondo's. Rivera questioned Shull briefly and spoke with other witnesses at the scene, and then Shull, Toney, and Nieves went to the Allentown Police Department to give statements. *fn1" Detective Glenn Granitz ("Granitz") discussed the incident with Shull at the station and witnessed her select photo # 27546 in the photo identification books as that of the robber. Though Shull indicated that she knew this man as a regular bar patron named "Sam Hicks," police records reveal him to be the Plaintiff. Despite this discrepancy, Shull later told Rivera that she was, in Rivera's words, "one hundred percent positive" that the man in the photo was the robber. Granitz communicated Shull's identification to Detective Alan Sotak ("Sotak"), who passed the information along to Rivera. Although Sotak also told Rivera that both Nieves and Toney identified Rowe's photo, *fn2" the probable cause statement Rivera made in securing the warrant for his arrest notes only Shull's identification and makes no mention of Nieves' and Toney's statements. Still, the warrant was issued and on February 15, 1994, Rivera proceeded to Rowe's home and arrested him. *fn3" Rowe made no statement to Rivera at this time and the two had no further contact concerning the robbery.

 Factual disputes begin to emerge at this point. Rowe's preliminary hearing was postponed a number of times and still had not taken place by March 22, 1994, when the police released him from the Lehigh County Prison (LCP) on his own recognizance. Rivera attributes the delays to several factors, among them the alleged unavailability of the witnesses. *fn4" Nieves moved shortly after the incident to another part of Allentown and may have been unreachable, for a time at least. But Toney, who did not move, testified at her deposition that the police never contacted her. Shull was available, according to Rivera, but on July 14, 1994, when the hearing was finally to take place, Shull informed Rivera that she believed Plaintiff was not the robber, and that, since the money had been recovered, she had no further interest in testifying. Rivera states that this was the first time Shull told him that she was recanting her identification, that he promptly notified the district attorney's office, and that the charges were dropped that day.

 Plaintiff's story, however, is that Shull actually informed the police that they had the wrong man much earlier. Plaintiff submits an affidavit in which Shull states that "within a day or two after February 14, 1994, [she] told the Allentown Police that they had arrested the wrong person for the robbery of Hondo's Bar." Pl.'s Resp. to Defs.' Mot. for Sum. Judg. at Ex. 2 P 5. Further, Rowe testified at his deposition that the day (or day after) he was released from LCP, he went back to Hondo's to confront his accusers, and that Shull told him then (either March 22 or 23) that she had already informed the police that they had arrested the wrong man. Finally, Plaintiff submits the "Investigative Supplement" made on July 14, 1994 by Officer Rivera in which he notes that

 
[Shull] refuses to testify because she states we had the wrong man. Ms. Shull pick [sic] out the suspect from a photo line up. But change her mind the next day. The DA office was inform [sic] of the situation.

 Pl.'s Resp. to Defs.' Mot. for Sum. Judg. at Ex. 3. Plaintiff submits no evidence suggesting that Shull specifically notified Rivera any time prior to July 14, 1994.

 Plaintiff argues that this evidence presents jury triable issues bearing on whether Officer Rivera arrested and detained him in violation of his constitutional rights.

 STANDARD FOR SUMMARY JUDGMENT

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. ...


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