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TORRES v. MCLAUGHLIN

June 5, 1997

FELIX TORRES
v.
JOHN McLAUGHLIN, et al.



The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 June 5, 1997

 Plaintiff Felix Torres instituted this suit under 42 U.S.C. § 1983 and the laws of the Commonwealth of Pennsylvania against defendants John McLaughlin, a police officer who worked for the City of Philadelphia and the Pennsylvania Attorney General's Bureau of Narcotics Investigations, John Sunderhauf, Zone Commander for the Attorney General's Bureau of Narcotics Investigation, and the City of Philadelphia. Defendants, who earlier filed motions to dismiss which we granted in part and denied in part, see Torres v. McLaughlin, 1996 U.S. Dist. LEXIS 17189, 1996 WL 680274 (E.D. Pa. Nov. 21, 1996), now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 I. Factual Background

 Rather than rehearse the factual allegations in this case, which despite the benefit of discovery have not materially changed from those alleged in the complaint, we will quote from our November 21, 1996 Memorandum:

 
On June 2, 1994, while walking alone on the streets of Philadelphia, Torres was arrested by defendant John McLaughlin, a police officer for the City of Philadelphia and the Pennsylvania Attorney General's Bureau of Narcotics Investigations. McLaughlin then took Torres to the parking lot of the Office of the Pennsylvania Attorney General's Bureau of Narcotics Investigation, where McLaughlin allegedly threw Torres to the ground and assaulted him, kicking him in the back, shoulders, and sides. See Compl. at PP 10-11. Torres was ultimately charged with the manufacture, delivery and/or possession of a controlled substance, a felony under Pennsylvania law. See Compl. at P 12.
 
On June 10, 1994, McLaughlin testified at the preliminary hearing that he had observed Torres engage in a drug transaction on June 2 and, after arresting Torres, had confiscated a quantity of controlled substances from him. See Compl. at P 13. As a result of that allegedly perjured testimony, Torres was held for trial. See id.
 
McLaughlin testified against Torres again on April 13, 1995, at a pretrial hearing and, on September 29, 1995, at Torres's state trial, where Torres was found guilty of possession with intent to deliver controlled substances. See Compl. at P 14. Torres claims McLaughlin gave perjured testimony at both the pretrial hearing and trial. See id. Following his conviction on September 29, Torres was remanded into custody. On April 18, 1996, Torres was sentenced to a term of thirty-six to seventy-two months incarceration, fined ten thousand dollars, and assessed one hundred ninety-one dollars in mandatory court costs. See Compl. at PP 15-16.
 
Torres remained incarcerated until May 13, 1996, when the Honorable Genece Brinkley "vacated his sentence, dismissed all charges, and ordered his immediate release from custody." Compl. at P 17.
 
On August 26, 1996, Torres filed this suit . . . [and] alleges in his complaint that . . . defendants violated his "rights to be secure in his person and property, to be free from excessive use of force, and from malicious prosecution, and due process" as well as the "rights secured [to him] by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution." Compl. at PP 22-23.

 Torres, 1996 U.S. Dist. LEXIS 17189, 1996 WL 680274, at *1-2.

 A. Malicious Prosecution Claim1

 1. Fourth Amendment Seizure

 In our November 21, 1996 Memorandum, we parsed through Torres's inartfully drawn complaint to decipher the possible constitutional deprivation alleged. We held that "there are three restraints on Torres's personal liberty that may constitute a sufficient deprivation of liberty to rise to the level of a constitutional violation: first, Torres's warrantless arrest on June 2, 1994; second, the preliminary hearing on June 10, 1994; and, finally, Torres's conviction on September 29, 1995, and his subsequent incarceration until May 13, 1996." Torres, 1996 U.S. Dist. LEXIS 17189, 1996 WL 680274, at *4 (internal citations omitted).

 We went on to hold that Torres's warrantless arrest on June 2, 1994, could not state a cause of action for false arrest, because Torres had filed this suit after the expiration of the two-year statute of limitations period for such a claim. Id. at *4-5; see infra n.10.

 We then ruled that, reading the complaint in the light most favorable to Torres, it suggested that Torres was held in custody after the preliminary hearing on June 10, 1994. See Torres, 1996 U.S. Dist. LEXIS 17189, 1996 WL 680274, at *5. Such a physical detention, we ruled, would be sufficient to constitute a "seizure" under the Fourth Amendment. Id. Conversely, we noted that if Torres had not, in fact, been detained following the preliminary hearing, he could not, as a matter of federal law, assert a § 1983 claim for malicious prosecution based on the preliminary hearing. Id.

 According to Torres's response to defendants McLaughlin's and Sunderhauf's motion for summary judgment, he was released from police custody the same day he was arrested, June 3, 1994, after signing a bond, the terms of which included that he must:

 
(1) Appear before the issuing authority and in the Courts of the County of Philadelphia, Pennsylvania, at all times as his presence may be required, ordered or directed, until full and final disposition of the case, to plead, to answer and defend as ordered the aforesaid charge or charges.
 
(2) Submit himself to all orders and processes of the issuing authority or Court.

 Certification of Bail and Discharge, at 2 (attached to Pl.'s Response to McLaughlin's and Sunderhauf's Mot. for Summ. J. at Exh. A (hereinafter "McLaughlin's Mot. for Summ. J. at ")); see Pl.'s Response to McLaughlin Mot. for Summ. J. at 11th unnumbered page. Because of the bond, Torres did not have to post any money for bail, which was set at five thousand dollars.

 Torres then appeared in state court on June 10, 1994 (for a preliminary hearing where bail was continued), *fn2" April 13, 1995 (for a pretrial hearing), September 28, 1995 (when he pled not guilty to the charges), and, finally, September 29, 1995 (for his trial, where he was found guilty and immediately taken into custody). See id.

 Neither Torres's signing of a bond on June 3, 1994, nor the June 10, 1994, preliminary hearing can, McLaughlin and Sunderhauf assert, serve as a factual predicate for a malicious prosecution claim because neither event constitutes a "seizure" under the Fourth Amendment. See McLaughlin Mem. of Law at 12-13. Torres responds that, while his prosecution was pending for close to fifteen months (from June 3, 1994, when he was released on bond, until his conviction and immediate incarceration on September 29, 1995), he "suffered restraints on his liberty which amounted to a Fourth Amendment violation." Pl.'s Response to McLaughlin's Mot. for Summ. J. at 12th unnumbered page.

 The question raised in Torres's response, an issue of first impression in this Circuit, is whether Torres has a Fourth Amendment malicious prosecution claim based on the "restraints" he claims to have suffered while his criminal prosecution was pending.

 Until the Supreme Court in Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), finally addressed the issue of malicious prosecution claims under § 1983, there had been an "embarrassing diversity of judicial opinion" as to whether such claims were actionable under § 1983. 114 S. Ct. at 811 n.4 (citing Brummett v. Camble, 946 F.2d 1178, 1180 n.2 (5th Cir. 1991) (noting that the First, Fifth, and Sixth Circuits have "flip-flopped" on the constitutional tort status of malicious prosecution claims)).

 The petitioner in Albright alleged that Detective Roger Oliver of the City of Macomb, Illinois had, under color of state authority, violated his right under the Due Process Clause of the Fourteenth Amendment to be free from prosecution except upon probable cause. See Albright, 114 S. Ct. at 810-11 (Rehnquist, C.J., plurality opinion). In Albright, Detective Oliver had agreed to provide Veda Moore, a cocaine addict, with protection (from an unpaid and unhappy former cocaine supplier) and money in exchange for Moore's assistance in acting as a confidential informant, seeking out cocaine dealers and purchasing drugs from them with the money Oliver supplied. See id. at 823 n.3 (Stevens & Blackmun, JJ., dissenting). Moore was singularly unsuccessful as an informant, having falsely implicated over fifty people in criminal activity, none of whom successfully prosecuted.

 In the course of her work as an informant, Moore claimed that she had bought cocaine from John Albright, Jr. See id. at 810 n.1 (Rehnquist, C.J., plurality opinion). The "cocaine" was, in fact, baking powder. Undeterred and without conducting any further investigation, Detective Oliver obtained a grand jury indictment against John Albright, Jr., for selling a "look-alike" substance, a crime in Illinois. See id. When he went to execute the search warrant, Detective Oliver discovered that John Albright, Jr. was a respected pharmacist in his sixties and clearly not the "dealer" of the baking soda. See id. Again undeterred, Detective Oliver, after learning that John Albright, Jr. had a son with the same first name, scratched out John Albright, Jr.'s name from the warrant and inserted that of John David Albright. See id. at 823 n.4 (Stevens & Blackmun, JJ., dissenting). It immediately became obvious that John David Albright could not have sold the baking soda to Moore, either. See id. Detective Oliver, not one to give up easily, then asked Moore whether she could have purchased the baking soda from petitioner Kevin Albright. See id. Moore, not one much interested in the truth, agreed that Kevin Albright was indeed the seller of the baking soda. See id. Detective Oliver then secured an arrest warrant for Kevin Albright (his third and final suspect), who, upon learning of the felony warrant, voluntarily surrendered to Detective Oliver but maintained his innocence. See id. He was released after posting bond and agreeing not to leave the state without the court's permission.

 At the preliminary hearing, Detective Oliver testified that Kevin Albright had sold a "look-alike" substance to Moore, leading the court to hold Kevin Albright over for trial. See id. at 810 (Rehnquist, C.J., plurality opinion). At the preliminary hearing, however, the state court dismissed the charge on the ground that it did not state a cause of action under Illinois law. See id.

 Kevin Albright then filed suit under § 1983, alleging that Detective Oliver had deprived him of his substantive due process right under the Fourteenth Amendment, specifically, his "liberty interest" to be free from criminal prosecution except upon probable cause. See id.

 Judge Posner, writing for the Seventh Circuit panel, affirmed the district court's dismissal, holding that prosecution without probable cause is not a constitutional tort under the Due Process Clause of the Fourteenth Amendment actionable under § 1983, unless it is accompanied by incarceration, loss of employment, or some other form of palpable injury. See Albright v. Oliver, 975 F.2d 343 (7th Cir. 1992). The Seventh Circuit found that, despite the shocking conduct of Detective Oliver, Kevin Albright had not suffered any of these constitutionally-cognizable deprivations. See id. at 345 ("An arrest is a serious business. To arrest a person on the scanty grounds that are alleged to be all that Oliver had to go on is shocking.").

 Chief Justice Rehnquist, writing for a plurality of the Court, *fn3" affirmed but on different grounds. See Albright, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (O'Connor, Scalia, Ginsburg, JJ., joining in opinion). "Petitioner asks us to recognize a substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause. We decline to do so." 114 S. Ct. at 810. Instead, Chief Justice Rehnquist identified a different constitutional source for Albright's malicious prosecution claim: the Fourth Amendment. See Singer, 63 F.3d 110 at 115 n.3. Because the Fourth Amendment addresses pretrial deprivations of liberty, and because the Court had previously recognized the Amendment's relevance to the liberty deprivations incident to criminal prosecutions, see Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) (Fourth Amendment requires a finding of probable cause prior to any extended pretrial deprivation of liberty after arrest), Chief Justice Rehnquist concluded that Albright should have brought his claim for malicious prosecution under the Fourth Amendment. See Albright, 114 S. Ct. at 813. *fn4" The Chief Justice went on, however, to "express no view as to whether [Albright's] claim would succeed under the Fourth Amendment, since he has not presented that question in his petition for certiorari." Id.

 Given Albright's observation that the Fourth Amendment may be the proper basis for a malicious prosecution claim, the Second Circuit in Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), suggested that "the Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person -- i.e., the right to be free of unreasonable or unwarranted restraints on personal liberty." Id. at 116. *fn5" A plaintiff like Mr. Torres, the Second Circuit reasoned, must therefore demonstrate a deprivation of liberty "consistent with the concept of 'seizure'." Id.

 Neither the Supreme Court in Albright nor the Second Circuit in Singer nor any other post-Albright court of appeals as far as we can determine has described precisely what type of deprivation of liberty satisfies the requirement of constitutional injury for a § 1983 malicious prosecution claim to succeed. See Leone v. Creighton, 948 F. Supp. 192, 196 (E.D.N.Y. 1996) (describing this area of the law as "relatively uncharted seizure waters").

 Justice Ginsburg's concurrence in Albright suggests that someone in Torres's position suffers a "seizure" under the Fourth Amendment, even while not in physical custody, as long as the criminal charges against him remain pending. Justice Ginsburg wrote:

 
A person facing serious criminal charges is hardly freed from the state's control upon his release from a police officer's physical grip. He is required to appear in court at the state's command. He is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense.

 Albright, 114 S. Ct. at 815.

 And while "[a] defendant incarcerated until trial no doubt suffers greater burdens," ...


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