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OLENDER v. TOWNSHIP OF BENSALEM

January 5, 1999

ROBERT OLENDER
v.
TOWNSHIP OF BENSALEM, ET AL.



The opinion of the court was delivered by: Anita B. Brody, District Judge.

    MEMORANDUM AND ORDER

Plaintiff Robert Olender brings this action under 42 U.S.C. § 1983 and 1986 against the Township of Bensalem, Bensalem Police Captain Jack Robinson, and Bensalem Police Detectives David Rouland, Timothy Carroll, and John Knowles. Olender alleges violations of his rights under Article IV of the Constitution, and the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution. His complaint is based on events, beginning in November 1994, which resulted in Olender's being charged with, tried for, and ultimately found not guilty of, prostitution and promoting prostitution, hindering apprehension or prosecution, and conspiracy. Based on the same facts, Olender also brings state tort claims against the individual defendants for false arrest and false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, Defendants have moved for summary judgment, arguing that all of Olender's claims fail as a matter of law. In addition, the individual defendants assert that they are protected by qualified immunity on the constitutional claims, and immunity under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et. seq., on the state law claims. I will grant Defendants' motion with respect to all claims for all remaining defendants.*fn1

I.  Background

The facts as set forth are taken from the record before me, which consist primarily of deposition testimony and Detective Rouland's Affidavit of Probable Cause, dated January 27, 1995.*fn2 I have adopted Plaintiff's version of the facts when there are disparities.*fn3 Plaintiff Robert Olender and his wife own a property at 568 Bristol Pike in Bensalem Township. In November 1993, they leased the to Robert Shockey, who ran a business called the Monterey Bay Photo Company on the premises. On November 10, 1994, the Bensalem Township Police Department received information that a house of prostitution might be operating at 568 Bristol Pike, and that same day, Detective Rouland began surveillance of the property. He followed and stopped a male leaving the premises, and questioned him on what took place inside. The man stated that he had just had a "B & D" session, in which, for $175, a woman whipped him, then watched him as he masturbated. The next day, November 11, Detective Rouland and a second Detective, named Berry, were watching 568 Bristol Pike. Again, they followed a man as he left the building, and questioned him. That man told the detectives that he had just received a massage in which the female masseuse masturbated him. That evening, Detectives Rouland and Berry, were back watching the property. At some point, Shockey came out of the building and asked the detectives to identify themselves. Shockey heard them identify themselves as "Roland" and "Berry," but the detectives would not indicate whether or not they were police officers. Shockey returned to the building and called Olender.

In that call, Shockey told Olender of his conversation with "Roland" and "Barry," and indicated that he wanted to find out if the two individuals were police officers or "vigilantes." Olender, who is a photographer, had taken portraits of most of the Township's police officers for a public service program, and in response to Shockey's call, went to 568 Bristol Pike, taking with him a poster containing the portraits of approximately fifty officers. Shockey could not identify "Roland" or "Barry" from that poster. Olender then called the police station for information on "Roland" and "Berry," and was told that there were two Bensalem detectives named Rouland and Barry. Olender then went out to where Rouland and Berry were positioned, identified himself, and invited them in to inspect the premises. The detectives declined and left the area.

One of the women taken in by the police on November 14 was Nicole Peckham. At the police station, Ms. Peckham was questioned by Defendant Knowles. At one point during the interview, Rouland briefly entered the room. Peckham later testified at Olender's trial that Rouland, who is "the brother-in-law of Peckham's son's father (by marriage)," threatened to have Peckham's son taken from her if she did not cooperate with the investigation. During the questioning, Knowles asked Peckham whether she knew Olender, or if she knew the landlord. She replied that she didn't know anyone name Olender, and didn't know the landlord. Knowles then said that Olender drives a white Jeep, and asked if she knew the guy who drove a white Jeep. Peckham replied that she knew a guy who drove a white Jeep, who met often with Shockey, but that she didn't know him as either Olender or the landlord. Peckham then added that the guy in the white Jeep was used as a "model," during a massage training session, but that the massage was non-sexual.*fn4

On November 16, Olender went to the police station, on assignment from his employer Associated Press, to get access passes to an unrelated crime scene from Defendant Captain Robinson. After getting the passes and finishing with Robinson, Olender was asked by Detectives Rouland and Knowles if he would speak to them, and Olender agreed, and the three men went into a small office at the station. Their discussion centered on the activities at 568 Bristol Pike, and Olender's knowledge of what was taking place there. During this discussion, Rouland repeatedly attempted to get Olender to admit that he knew what was going on there and informed Olender that he could be charged with "facilitating prostitution" because he was the landlord and should have known what was going on. Olender was upset by Rouland's questions and statements, and responded that he did not know what was going on at 568 Bristol Pike or what "facilitating prostitution" was, and stated that he would sue Rouland if Rouland attempted to arrest or charge him. After Rouland informed Olender that he could be charged with prostitution, Olender said "Wow, I better get my lawyer." Rouland replied "[Y]ou'd better talk to your lawyer about that," but the interview did not end. Olender attempted to leave during this conversation, but was prevented from doing so, because Rouland's chair blocked the door, and each time Olender stood up to leave, Rouland told him to sit down and calm down. The interview lasted about one and one-half hours. At approximately 10:00 pm, Olender left the police station and went to the Associated Press office to hand in the passes he had obtained from Captain Robinson.

The next morning, Olender met with his attorney. Upon leaving his attorney's office, Olender saw Rouland on the street and waved to him. Rouland pulled over and Olender said words to the effect of "I guess you got me, I'm guilty for facilitating this prostitution. I spoke to my lawyer today and he told me that the law is changed. He found a new case and told me that sadomasochistic sex is illegal." Olender further told Rouland that his lawyer advised that it was a low-grade misdemeanor, and that Olender would only have to pay a fine. Olender then told Rouland, "Let's go over to Judge Brown's office and I can pay my fine." Rouland did not take any action at this time, and indicated to Olender that it was no big deal, and "they might not do anything about it."

On or about December 9, 1994, Rouland signed an affidavit of probable cause, requesting that an arrest warrant be issued against Olender. Among other facts, Rouland's affidavit related that, on November 16, Olender told Rouland that he had been suspicious of the activities at 568 Bristol Pike. In addition the affidavit included Ms. Peckham's identification of Olender as the model at the massage training session. Also on December 9, Rouland and Carroll signed a criminal complaint against Olender, charging him with prostitution and promoting prostitution, and hindering apprehension and prosecution. Olender was arraigned before District Justice Leonard J. Brown on December 9, 1994 and pled "not guilty." On Monday, December 12, Nicole Peckham was arraigned, and Olender was present at her arraignment. When Peckham was introduced to Olender that day, she realized that she had misidentified him to Knowles on November 14 as the man in the white Jeep, and the massage "model."

On January 25, 1995, a preliminary hearing was conducted by District Justice Brown. The only evidence offered against Olender was Defendant Carroll's testimony regarding Carroll's undercover activities at Monterey in August and November, and the statements made to Detective Carroll about the availability of "hand releases." District Justice Brown held that Carroll's testimony was inadmissible hearsay. The Commonwealth asked for a continuance in order to present additional witnesses and evidence, but District Justice Brown denied that request and dismissed the case without prejudice to the Commonwealth's right to refile charges against Olender. Ms. Peckham was present for this hearing, and informed the Assistant District Attorney handling Olender's case, Troy Leitzel, that she had incorrectly identified Olender on November 14 as the massage model. Rouland became aware of Peckham's recantation that same day.

Two days later, on January 27, 1995, Rouland and Carroll again swore out a criminal complaint against Olender before District Justice Brown. In support of the complaint, Rouland presented an exact copy of the probable cause affidavit he had submitted on December 9, 1994, which included Ms. Peckham's now-recanted identification. This second criminal complaint added a third charge against Olender for conspiracy. Also on January 27, District Attorney Alan Rubenstein phoned Olender's attorney and informed him of the filing of the amended criminal complaint. On February 2, Rubenstein filed a petition to secure a new issuing authority and requested a Common Pleas Judge to appoint an alternate District Justice to sit at the preliminary hearing. Common Pleas Judge Garb appointed District Justice John Kelly to handle this second preliminary hearing, which was held on March 16, 1995. Following this preliminary hearing District Justice Kelly held Olender over for trial.

In June 1995, Olender went to trial before the Honorable Ward F. Clark. Prior to trial, Olender filed a motion to dismiss the charges, suppress the warrant executed at 568 Bristol Pike, and to suppress Rouland's report of his November 16, 1994 interview with Olender. Judge Clark denied all three motions. On June 26 trial began, and after the prosecution presented all of its evidence, Olender filed for a demurrer all counts, which was denied after a hearing. The entire case was submitted to a jury, which returned a verdict of not guilty on all counts.

II. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "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). The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party does not bear the burden of persuasion at trial, as is the case here, its burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. 477 U.S. at 325, 106 S.Ct. 2548.

Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

To determine whether summary judgment is appropriate, I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See id. The standard thus "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)." Id. 477 U.S. at 250, 106 S.Ct. 2505. If the evidence favoring the nonmoving party is "merely colorable," "not significantly probative," or amounts to only a "scintilla," summary judgment may be granted. See id. 477 U.S. at 249-50, 252, 106 S.Ct. 2505; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Of course, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Moreover, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Big Apple BMW, Inc., 974 F.2d at 1363. Thus, my inquiry at the summary judgment stage is only the "threshold inquiry of determining whether there is the need for a trial," that is, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505.

III. 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

    Every person who, under color of any statute,
  ordinance, regulation, custom, or usage, of any
  State . . ., subjects, or causes to be subjected,
  any citizen of the United States . . . to the
  deprivation of any rights, privileges, or
  immunities secured by the Constitution and laws,
  shall be liable to the party injured in an action
  at law, suit in equity, or other proper proceeding
  for redress. . . .

In order to bring a successful § 1983 claim, a plaintiff must demonstrate (1) that the challenged conduct was committed by a person acting under color of state law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Carter v. City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). Olender makes the following claims against each of the defendants under § 1983: denial of his right ...


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