The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
In this case, there is no claim that plaintiff was
restrained, did not have freedom of movement, or that
restrictions were imposed upon plaintiff. Requiring a person to
leave her residence pursuant to a PFA Order does not rise to the
level of an arrest. Therefore, the Court will grant summary
judgment in favor of defendants as to plaintiff's Fourteenth
As to plaintiff's claims under the Fourth Amendment,
plaintiff's right to be free from unreasonable searches and
seizure, the Court agrees that such a right was clearly
established at the time the incident occurred. See Maryland v.
Garrison, 480 U.S. 79, 86, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987);
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). The issue, then, is whether, in light of the clearly
established law and information in the officers' possession, the
officers' conduct in executing the PFA Order was objectively
reasonable, such that a reasonable officer possessing the same
information would have believed his conduct to be lawful.
Plaintiff also claims that the officers acted in retaliation
for plaintiff's prior complaint based on the Danville incident by
actively encouraging Winters to get the emergency PFA Order in
order to evict plaintiff from her residence. This contention,
even if true, is irrelevant. This is so because the qualified
immunity inquiry is an objective one, which asks how a reasonable
officer would have acted under these circumstances. Motive, on
the other hand, involves a subjective appreciation of the
individual officer's state of mind. See Parkhurst v. Trapp,
77 F.3d 707, 712 (3d Cir. 1996) ("The objective facts control a
decision on summary judgment [to determine whether conduct was
objectively reasonable], regardless of allegations of intent.")
(quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct.
3034, 3040, 97 L.Ed.2d 523 (1987)). The bottom line is that,
regardless of motive, Officers Coopersmith's and Koehler's
conduct in executing a court order issued by a District Justice
pursuant to state law upon the request by the alleged victim in
this case was objectively reasonable.
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989), the Supreme Court held that all claims that
law enforcement officers have used excessive force are to be
analyzed under the Fourth Amendment "reasonableness" standard.
Id. at 394-95, 109 S.Ct. 1865. Thus, plaintiff's excessive force
claim is properly analyzed under the Fourth Amendment, rather
than the Fourteenth Amendment.
In assessing plaintiff's excessive force claim under the
Fourth Amendment, the issue is "whether the officers' actions are
`objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. "Not every
push or shove, even if it may later seem unnecessary in the peace
of a judge's chambers," violates the Fourth Amendment. Id.
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (1973), cert.
denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). The
Court's assessment of reasonableness "must embody allowance for
the fact that police officers are often forced to make
split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving — about the amount of force that
is necessary in a particular situation." Id.
In this case, summary judgment is appropriate if, as a matter
of law, the evidence would not support a reasonable jury finding
that the officers' actions were objectively unreasonable. Groman
v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995).
Plaintiff has presented the following evidence to the Court
regarding Officer Coopersmith's use of excessive force:
Defs.' Mot. for Summ.J., App. § 9, Pl.'s Dep. at 110. Plaintiff
further describes that Officer Coopersmith "took my hand and
threw my hand over pretty hard." Id. at 118. The record reveals
no other evidence that either Officer Coopersmith or Officer
Koehler used objectively unreasonable force in removing plaintiff
from the premises. The Court finds that a reasonable jury would
conclude that the force utilized by Officer Coopersmith in order
to maintain a watchful over plaintiff was objectively reasonable.
Thus, in the context of executing a PFA Order in a potentially
volatile domestic situation, Officer Coopersmith's use of force
to monitor plaintiff's activities in order to ensure the safety
of plaintiff and the officers alike, and where plaintiff suffered
the slightest of injury, if at all, was objectively reasonable.
See Cronin v. West Whiteland Township, 994 F. Supp. 595, 601
(E.D.Pa. 1998) (noting the recognized "combustible nature of
domestic disputes") (quoting Tierney v. Davidson, 133 F.3d 189,
197 (2d Cir. 1998)). Accordingly, Officers Coopersmith and
Koehler are entitled to summary judgment with regard to
plaintiff's claim of excessive force in violation of the Fourth
C. Plaintiff Has Failed to Show That the Officers
Unreasonably Seized the Dental Flosser As Evidence.
Plaintiff argues that Officer Koehler, in violation of the
Fourth Amendment, conducted a warrantless seizure of the weapon
that allegedly was used to inflict injury upon Winters, the
dental flosser, without informing plaintiff that she had the
right to refuse. Defendants assert that plaintiff consented to
the seizure of the dental flosser and, therefore, there is no
Fourth Amendment violation.
An officer acting pursuant to valid consent can conduct a
warrantless search without violating the Fourth Amendment. See
Schneckloth v. Bustamonte, 412 U.S. 218, 222-23, 93 S.Ct. 2041,
36 L.Ed.2d 854 (1973). In order for the consent to be valid, it
must shown by a preponderance of the evidence that the consent
was freely and voluntarily given. See id. (citing Bumper v. North
Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797
(1968)). The Court must consider the totality of the
circumstances to determine whether the consent was freely given.
See United States v. Deutsch, 987 F.2d 878, 883 (2nd Cir. 1993).
Courts consider certain factors in determining whether consent
was voluntary, i.e., "the age of the accused, his education, his
intelligence, whether he was advised of his constitutional
rights, and whether the questioning was repeated and prolonged."
United States v. Kim, 27 F.3d 947, 955 (3d Cir. 1994), cert.
denied, 513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995); see
also United States v. Velasquez, 885 F.2d 1076, 1081-83 (3d Cir.
1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d
497 (1990). Knowledge of the right to refuse to consent prior to
consenting is one factor to be taken into account, but such
knowledge does not have to be established as a prerequisite to
establishing voluntary consent. See Schneckloth, 412 U.S. at 227,
231-34, 93 S.Ct. 2041.
In this case, plaintiff testified that one of the officers
told her that Winters was going to press criminal charges against
plaintiff for allegedly assaulting Winters with a dental flosser.
Defs.' Mot. for Summ.J., App. § 9, Pl.'s Dep. at 108-09. Officer
Koehler then directed plaintiff to "go get it [the dental
flosser]." Id. at 109. Plaintiff testified:
I went into the bathroom. I got [the dental
flosser], as [Officer Koehler] ordered,
with . . . both the tips. And I went back out and
gave him the dental flosser. . . . He left,
. . . took [the dental flosser] somewhere, came back
up and he just said to me, I have to take this. And I
didn't . . . argue with him. I didn't question him.
The record reveals that plaintiff is a fifty-two year old
high school graduate. There is no evidence that plaintiff was
under the influence of alcohol or drugs. Nor does the evidence
show that Officer Koehler threatened, intimidated, or coerced
plaintiff into retrieving the dental flosser, or obtained the
dental flosser through subterfuge or deception. Plaintiff was not
under arrest, or otherwise detained, in police custody, or
subjected to prolonged or repeated questioning. Further,
plaintiff's testimony reveals that plaintiff promptly acquiesced,
she did not object to Officer Koehler's request, and that she
knew Winters intended to press criminal charges against her.
Therefore, the Court finds that, under the total circumstances of
this case, plaintiff voluntarily
consented to Officer Koehler's seizure of the dental flosser.
Defendants are entitled to summary judgment with regard to
plaintiff's claim that Officer Koehler's seizure of the dental
flosser violated the Fourth Amendment.
D. Plaintiff Has Failed To State A Viable Claim For Malicious
Plaintiff avers that defendants, particularly Officer
Coopersmith, filed criminal charges of simple assault and
harassment without probable cause for retaliatory purposes, in
violation of the Fourth and Fourteenth Amendments.*fn11 Defendants
argue that plaintiff fails to establish either that she was
seized for purposes of creating a deprivation of liberty or that
there was an absence probable cause. Alternatively, defendants
posit that they are entitled to qualified immunity. Given that
the Court concludes that there is no genuine issue of material
fact as to the presence of probable cause, there is no need to
address defendants' arguments concerning whether plaintiff was
seized for purposes of malicious prosecution or that defendants
are entitled to qualified immunity.
A civil rights claim for malicious prosecution is actionable
under section 1983. See Losch v. Borough of Parkesburg,
Pennsylvania, 736 F.2d 903, 907-08 (3d Cir. 1984) ("It is clear
that the filing of charges without probable cause and for reasons
of personal animosity is actionable under § 1983. Similarly,
institution of criminal action to penalize the exercise of one's
First Amendment rights is a deprivation cognizable under §
1983."). In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994), reh'g denied, 510 U.S. 1215, 114 S.Ct. 1340,
127 L.Ed.2d 688 (1994), the Supreme Court stated that if a
malicious prosecution claim violated a constitutional right, it
was most likely a violation of the Fourth Amendment right to
freedom from seizure, and not the right to substantive due
process of the Fourteenth Amendment. See id. at 273-34, 114 S.Ct.
807. Following Albright, courts of appeals and courts within this
district have adjudicated section 1983 malicious prosecution
claims only under the Fourth Amendment, rather than the
Fourteenth Amendment. See Uboh v. Reno, 141 F.3d 1000 (11th Cir.
1998); Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), cert. denied,
___ U.S. ___, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998); Mateiuc v.
Hutchinson, No. 97-1849, 1998 WL 240331, at *2 (E.D.Pa. May 14,
1998) (relying upon Albright and entering summary judgment in
favor of defendants as to plaintiff's Fourteenth Amendment
malicious prosecution claim); Garcia v. Micewski, No. 97-5379,
1998 WL 547246, at *6 (E.D.Pa. Aug.24, 1998) (same); Gallo v.
City of Philadelphia, 975 F. Supp. 723, 726 (E.D.Pa. 1997), rev'd
on other grounds, 161 F.3d 217 (3d Cir. 1998).
Recently, however, the Third Circuit in Torres v. McLaughlin,
163 F.3d 169 (3d Cir. 1998), found the holding of Albright to be
more expansive than previously held. The Third Circuit concluded
that "Albright stands for the broader proposition that a section
1983 claim may be based on a constitutional provision other than
the Fourth Amendment. However, [the Third Circuit] note[s] that
Albright commands that claims governed by explicit constitutional
text may not be grounded in substantive due process." Id. at 172.
In this case, plaintiff claims that Officer Coopersmith
deprived plaintiff of her liberty in violation of the Fourteenth
Amendment by maliciously filing charges against plaintiff without
probable cause. Pl.'s Compl. at ¶ 87. Plaintiff's claim for
malicious prosecution arising out of the alleged liberty
deprivation pursuant to the
Fourteenth Amendment sounds in substantive due process, i.e., the
right to be free from prosecution without probable cause. Under
Albright and Torres, therefore, plaintiff's Fourteenth Amendment
malicious prosecution cannot survive because claims for malicious
prosecution for which there is explicit textual constitutional
support, i.e., the Fourth Amendment prohibition against
unreasonable "seizure,"*fn12 may not be based on generalized
substantive due process grounds. See Torres, 163 F.3d at 173
("`[I]f a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eight Amendment,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process. Substantive due process analysis is therefore
inappropriate in this case only if respondents' claim is `covered
by' the Fourth Amendment.'") (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1715, 140 L.Ed.2d 1043
Additionally, plaintiff claims a Fourth Amendment violation
of malicious prosecution. In order to prevail on this claim,
plaintiff must prove the elements of malicious prosecution
pursuant to the common law tort of the forum state, which in this
case is Pennsylvania. See Hilfirty v. Shipman, 91 F.3d 573, 579
(3d Cir. 1996). In Pennsylvania, a party bringing a malicious
prosecution claim must demonstrate that: (1) defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in
plaintiff's favor; (3) the proceeding was initiated without
probable cause; and (4) defendants acted maliciously or for a
purpose other than bringing plaintiff to justice. See id.
Additionally, because this malicious prosecution is based upon
the Fourth Amendment, the Third Circuit has adopted an additional
requirement that plaintiff must show "some deprivation of liberty
consistent with the concept of `seizure.'" Gallo v. City of
Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998), rev'd on other
grounds, 161 F.3d 217 (3d Cir. 1998), (quoting Singer v. Fulton
County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995), cert. denied,
517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996)). A person
can be liable for malicious prosecution if he "`fail[s] to
disclose exculpatory evidence to prosecutors, make[s] false or
misleading reports to the prosecutor, omit[s] material
information from the reports, or otherwise interfere[s] with the
prosecutor's ability to exercise independent judgment' in
deciding whether to prosecute." Garcia v. Micewski, No. 97-5379,
1998 WL 547246, at *9 (E.D.Pa. Aug.24, 1998) (quoting Torres v.
McLaughlin, 966 F. Supp. 1353, 1364 (E.D.Pa. 1997), rev'd on other
grounds, 163 F.3d 169 (3d Cir. 1998)).
In this case, the inquiry turns on whether plaintiff has met
the burden of showing that Officer Coopersmith had no probable
cause to initiate the simple assault and harassment proceedings
against plaintiff based upon the information Officer Coopersmith
obtained from Winters in the course of Winters' request for an
emergency PFA Order. Defendants argue that there is no genuine
issue of material fact that Officer Coopersmith had probable
cause to file the criminal complaint against plaintiff.
"Probable cause is proof of facts and circumstances that
would convince a reasonable, honest individual that the suspected
person is guilty of a criminal offense. `Probable cause does not
depend on the state of the case in point of fact but upon the
honest and reasonable belief of the party prosecuting.'" Lippay
v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993) (quoting Miller
v. Pennsylvania Railroad Co., 371 Pa. 308, 89 A.2d 809, 811
(1952)) (citations omitted). Probable cause means
more than mere suspicion, but does not require the police to have
evidence beyond a reasonable doubt. See United States v. Glasser,
750 F.2d 1197, 1205 (3d Cir. 1984). Probable cause is "defined in
terms of facts and circumstances `sufficient to warrant a prudent
man in believing the suspect had committed or was committing an
offense.'" Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43
L.Ed.2d 54 (1975), (quoting Beck v. Ohio, 379 U.S. 89, 91, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964)). The question of probable cause
is generally one for the jury, but where the uncontroverted facts
could not lead a reasonable person to find that probable cause
was lacking, the Court may decide the issue. See Deary v. Three
Un-Named Police Officers, 746 F.2d 185, 190 (3d Cir. 1984);
Huffaker v. Bucks County Dist. Attorney's Office, 758 F. Supp. 287,
291 (E.D.Pa. 1991).
Officer Coopersmith charged plaintiff with simple assault and
harassment. Defs.' Mot. for Summ.J., App. § 2. A person is guilty
of simple assault if he "attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another." 18
Pa.Cons.Stat.Ann. § 2701(a)(1). A person commits the crime of
harassment when "with intent to harass, annoy or alarm another
person, he strikes, shoves, kicks or otherwise subjects him to
physical contact, or attempts or threatens to do the
same . . . or he engages in a course of conduct or repeatedly
commits acts which alarm or seriously annoy such other person and
which serve no legitimate purpose." 18 Pa.Cons.Stat.Ann. §
It is uncontroverted that on the night of September 14, 1996,
plaintiff and her husband, Winters, had an altercation concerning
an electric dental flosser. Defs.' Mot. for Summ.J., App. § 9,
Pl.'s Dep. at 87-89. After some time, Winters got into a van and
left the residence. Id. at 93. At the police station Winters told
Officer Coopersmith that plaintiff scratched him with a dental
flosser. Pl.'s Resp., App. § 11, Coopersmith Dep. at 8. Winters
then showed Officer Coopersmith the scratches on his chest, and
police photographs were taken of the injuries. Id. at 8, 12.
Officer Coopersmith informed Winters of his right to get an
emergency PFA Order, which Winters chose to do. Id. at 9-10.
Officer Coopersmith led Winters to the office of a District
Justice, where Winters spoke directly to the District Justice.
Id. at 10, 13-14. The District Justice issued an emergency PFA
Order ordering plaintiff to refrain from abusing Winters and
removing plaintiff from the residence. Id. at 14; Defs.' Mot. for
Summ.J., App. § 1.*fn13 Therefore, the Court finds that, based upon
the evidence possessed by Officer Coopersmith at the time she
filed the simple assault and harassment charges against
plaintiff, there was probable cause to do so.
Plaintiff further contends that Officer Coopersmith filed the
criminal charges in retaliation against plaintiff. In her
response to defendants' motion for summary judgment, plaintiff
refers the Court to Losch v. Borough of Parkesburg, Pennsylvania,
736 F.2d 903 (3d Cir. 1984), where the Third Circuit found in
part that the district court should not have granted summary
judgment as to plaintiff's malicious prosecution claim "unless
the opponent's evidence is `too incredible to be believed by
reasonable minds.'" Id. at 909. In Losch, plaintiff was charged
with harassment and threatening a police officer when plaintiff
wrote a note to a police officer, advising the officer "to stop
picking on my wife and children and accepting
information that is not true." Id. at 906. Plaintiff's note also
indicated that plaintiff "ha[s] intentions of taking this matter
before the County District Attorney's Office and having you [the
officer] arrested for a number of offenses." Id. To support
plaintiff's contention that defendants maliciously filed criminal
charges against plaintiff for the purpose of penalizing plaintiff
for exercising his First Amendment rights by writing the note,
plaintiff offered, among other evidence, at least three sworn
witness statements: a statement by plaintiff's wife and daughter
each recalling being told by an officer that he was "going to get
[plaintiff] back . . . and have him arrested"; and a statement by
a former Assistant District Attorney attesting that he believed
the charges were filed maliciously. Id. at 908.
In this case, as evidence of malice by Officer Coopersmith,
plaintiff relies upon the Danville incident. However, this
incident did not directly involve Officer Coopersmith, nor has
plaintiff adduced evidence that Officer Coopersmith even had
knowledge of the Danville incident. In any event, even assuming
that Officer Coopersmith had acted maliciously, plaintiff has not
fulfilled her burden to show that there was no probable cause to
file the charges against plaintiff. Therefore, summary judgment
shall be granted in favor of defendants as to plaintiff's Fourth
Amendment malicious prosecution claim.
E. Plaintiff Has Not Produced Sufficient Evidence to Establish
Supervisory Liability for Chief Fretz.
Plaintiff's complaint does not allege any specific allegations
of supervisory liability against Chief Fretz. However, it appears
that in plaintiff's subsequent filings, albeit without leave to
amend the complaint, she attempted to impose supervisory
liability upon Chief Fretz for his failure to train and supervise
police officers, and for approving the criminal charges filed by
Officer Coopersmith against plaintiff. Defendants argue that
plaintiff has failed to adduce sufficient evidence to support
supervisory liability against Chief Fretz.
The fact that a defendant is in a supervisory position is
insufficient to establish liability as there is no respondeat
superior liability under section 1983. See Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). In order to
impose supervisory liability against Chief Fretz, the Court must
determine that the harm to plaintiff was caused by a
constitutional violation, and if so, that Chief Fretz was
responsible for that violation. See Bielevicz v. Dubinon,
915 F.2d 845, 850-51 (3d Cir. 1990). The Court having found that
there was no constitutional violation committed by the underlying
officers, supervisory liability cannot be imposed upon for Chief
Fretz for an alleged failure to train and supervise, or for
approving the criminal charges against plaintiff. See Kis v.
County of Schuylkill, 866 F. Supp. 1462, 1473-74 (E.D.Pa. 1994)
(granting summary judgment to defendants Chief of Police and
Mayor in part because their liability was grounded in the
liability of an underlying police detective, who the court found
had not violated plaintiff's constitutional rights); Valenti v.
Sheeler, 765 F. Supp. 227, 232 (E.D.Pa. 1991) (finding that
defendant Chief of Police was not liable for failure to train or
adequately supervise where the court concluded that the conduct
of the underlying officers was reasonable and based on probable
Assuming arguendo that Officers Coopersmith and Koehler had
committed a constitutional violation, plaintiff has failed to put
forth sufficient evidence to show deliberate indifference by
Chief Fretz. The Third Circuit has set forth the standards to be
applied to an action for supervisory liability under section
[T]he standard of individual liability for
supervisory public officials will be found to be no
less stringent than the standard of liability for the
public entities that they serve. In either case, a
not the "moving force [behind] the constitutional
violation" of a subordinate, unless that "person" —
whether a natural one or a municipality — has
exhibited deliberate indifference to the plight of
the person deprived.
Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989) (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989)). Plaintiff, therefore, must
identify a specific supervisory failure by Chief Fretz that
evidences deliberate indifference to plaintiff's plight, and that
there is a close causal relationship between Chief Fretz's
alleged failure or deficiency and the ultimate injury to
plaintiff. See Sample, 885 F.2d at 1118.
In order to prevail against Chief Fretz, plaintiff would be
required to show that the injury to plaintiff could have been
avoided had Officers Coopersmith and Koehler been trained under a
program that was not deficient in an identified respect. See City
of Canton, 489 U.S. at 390, 109 S.Ct. at 1206. Considering the
facts in the light most favorable to the plaintiff, plaintiff
asserts that Chief Fretz failed to train and supervise police
officers in handling domestic violence situations, executing PFA
Orders, and filing criminal charges. As a result, plaintiff avers
that her Fourth Amendment rights were violated.
Plaintiff, however, fails to identify a specific practice
that Chief Fretz failed to employ that points to Chief Fretz's
deliberate indifference to plaintiff's injury, and that
plaintiff's injury is affirmatively linked to Chief Fretz's
failure to implement a certain practice. Plaintiff offers little
evidence as to direct involvement in or acquiescence by Chief
Fretz in a deliberate failure to implement a specific training or
supervisory practice that is directly linked to plaintiff's
alleged deprivation of rights in this instance. Plaintiff's only
evidence of direct involvement by Chief Fretz in the incident
before this Court is that Chief Fretz approved Officer
Coopersmith's filing criminal charges against plaintiff. Pl.'s
Resp., App. § 10, Fretz Dep. at 11. Mere approval of a
prospective criminal complaint, absent any indicia that Chief
Fretz had prior knowledge of the incident or that the complaint
appeared suspicious on its face, does not convert Chief Fretz
into the "moving force" behind any alleged constitutional
violation committed by Officer Coopersmith. Moreover, while
plaintiff makes reference to a prior incident that occurred
between plaintiff and the Palmer Township Police Department,
specifically, the Danville incident, plaintiff does not assert
that any prior injuries to plaintiff were similar to the injuries
asserted here, that there was a specific failure to train and
supervise by Chief Fretz, or that Chief Fretz was the "moving
force behind" or acquiesced to such deliberate indifference.
Even assuming that Officers Coopersmith and Koehler violated
plaintiff's constitutional rights, plaintiff has failed to adduce
sufficient evidence to substantiate a claim of deliberate
indifference by Chief Fretz, or that any injury to plaintiff was
affirmatively linked to Chief Fretz's deliberate indifference.
Therefore, the Court finds that defendants are entitled to
summary judgment regarding plaintiff's claim of supervisory
liability against Chief Fretz.
F. Plaintiff Has Not Produced Sufficient Evidence To Establish
An Unlawful Policy Or Custom By Palmer Township And The
Palmer Township Police Department.
In her complaint, plaintiff avers that Palmer Township and
the Palmer Township Police Department have engaged in "policies
and customs of encouraging, tolerating, permitting and ratifying
a pattern of illegal actions which was known to it or should have
been known to it." Pl.'s Compl. at ¶ 55. Plaintiff also contends
that Palmer Township and the Palmer Township Police Department
have "grossly failed to train their police officers in the
fundamental law of investigations and arrest and on executing
PFA's and evictions
which directly lead [sic] to plaintiff's damages." Pl.'s Compl.
at ¶ 56. In response, defendants argue that there is no evidence
on the record to support a finding of policies or customs by
Palmer Township or the Palmer Township Police Department to
violate citizens' constitutional rights, and that plaintiff has
presented no evidence to show defendants' deliberate indifference
via their alleged failure tot rain. As with Chief Fretz, the
Court having concluded that no underlying constitutional
violation was committed by Officers Coopersmith and Koehler,
municipal liability cannot be imposed upon Palmer Township and
the Palmer Township Police Department. Even assuming that a
violation was committed by Officers Coopersmith and Koehler, the
Court finds that there is no municipal liability in this case.
A municipality can be held liable under section 1983 for
implementing an official policy, practice or custom "`when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.'" Losch v.
Borough of Parkesburg, Pennsylvania, 736 F.2d 903, 910 (3d Cir.
1984) (quoting Monell v. Department of Social Services of City of
New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611
(1978)). As with supervisory liability, "[a] plaintiff must
identify the challenged policy, attribute it to the city itself,
and show a causal link between execution of the policy and the
injury suffered." Losch, 736 F.2d at 910.
Plaintiff has failed to produce any evidence supporting her
contentions that Palmer Township's and the Palmer Township Police
Department's customs or policies were deliberately indifferent
with regard to citizens' Fourth Amendment rights that allegedly
resulted in injury to plaintiff. Plaintiff does not specifically
identify the deficient customs or policies utilized by Palmer
Township and the Palmer Township Police Department that caused
plaintiff's injury, nor does plaintiff identify a particular
aspect of a failure to train that evidences either Palmer
Township's or the Palmer Township Police Department's deliberate
indifference, and the causal link between an alleged failure to
train and the injury to plaintiff. Plaintiff again refers to
incidents such as the Danville incident, but there is no similar
injury to plaintiff involving a violation of plaintiff's Fourth
Amendment rights, malicious prosecution, or the improper
execution of a PFA Order. The record also does not reflect
evidence of similar civil rights violations of other persons
allegedly committed by officers of the Palmer Township Police
Department. In essence, plaintiff has failed to "show both
contemporaneous knowledge of the offending incident or knowledge
of a prior pattern of similar incidents and circumstances under
which the supervisor's actions or inaction could be found to have
communicated a message of approval to the offending subordinate."
Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998). To
impose municipal liability upon Palmer Township and the Palmer
Township Police Department, it is not enough for plaintiff to
show that a particular officer is unsatisfactorily trained
because the officer's shortcomings may have resulted from factors
other than a faulty training program. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 390-91, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989). It is also not enough for plaintiff to prove that her
injury could have been avoided if the officers had had better or
more training that would have enabled the officers to avoid the
particular injury-causing conduct. "Such a claim could be made
about almost any encounter resulting in injury, yet not condemn
the adequacy of the program to enable officers to respond
properly to the usual and recurring situations with which they
must deal." Id.
Since plaintiff has failed to show the inadequacy of the
officers' training program by identifying a specific deficiency,
nor has plaintiff specified an affirmative link or close relation
between the identified deficiency and the alleged injury to
plaintiff, even assuming Officers Coopersmith and Koehler
violated plaintiff's constitutional rights, there can be no
municipal liability and summary judgment is granted in favor of
G. Plaintiff's State Law Claim.
Plaintiff alleges that, pursuant to Pennsylvania law,
defendants defamed her in the local press by unlawfully releasing
to the local newspaper information concerning the PFA Order
obtained by Winters against plaintiff and the criminal charges
filed by Officer Coopersmith against plaintiff. Defendants argue
that the information contained in the criminal complaint are
absolutely privileged, and that Palmer Township and the Palmer
Township Police Department are immune from claims of intentional
torts, such as defamation, allegedly committed by governmental
Having granted summary judgment in favor of all of the
defendants as to all of plaintiff's section 1983 claims, and
there being no independent basis for federal jurisdiction over
the state law claim, the Court need not address the merits of
plaintiff's defamation claim. Therefore, the Court will exercise
its discretion, pursuant to 28 U.S.C. § 1367(c)(3), and will
decline supplemental jurisdiction over plaintiff's state law
claim.*fn15 See Borough of West Mifflin v. Lancaster, 45 F.3d 780,
788 (3d Cir. 1995).
For the foregoing reasons, the Court finds that summary
judgment is granted in favor of defendants as to plaintiff's
claims under 42 U.S.C. § 1983, and plaintiff's state law claim is
dismissed without prejudice.