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February 26, 1999


The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.



This is a civil rights case arising out of police intervention in a domestic dispute. Plaintiff alleges that defendants. Palmer Township, Palmer Township Police Department, Chief of Police Bruce Fretz, Officer Susan Coopersmith, and Officer Glenn Koehler, during the course of executing a Protection from Abuse Order obtained by plaintiff's husband against plaintiff, and in retaliation for plaintiff having been openly critical of the Palmer Township Police Department on a prior occasion, unreasonably seized her property, denied her a liberty interest, used excessive force against her, defamed her in the local press, and unlawfully filed a criminal complaint against her. Before the Court is defendants' motion for summary judgment. For the following reasons, the Court will grant the motion.


The following facts are not in dispute or are construed in the light most favorable to plaintiff. On September 14, 1996, plaintiff and her husband, Harold Winters ("Winters"), had an altercation at plaintiff's residence. At approximately 11:30 p.m., Winters left the residence and went to the Palmer Township Police Department. While at the police station, Winters told Officer Susan Coopersmith ("Officer Coopersmith") that plaintiff allegedly scratched Winters on his chest with an electric dental flosser, punched him about the body, and smashed the windshield of Winters' van. In turn, Officer Coopersmith informed Winters that he could obtain an emergency Protection from Abuse ("PFA") Order against plaintiff. Also while at the police station, Officer Coopersmith caused another officer to take photographs of the injuries to Winters' chest. Thereafter, Winters drove his vehicle, following behind Officer Coopersmith, to the office of the District Justice in Northampton County some twenty minutes away to request the issuance of such order. The District Justice, after speaking with Winters, signed an emergency PFA Order, ordering plaintiff to refrain from abusing Winters and evicting plaintiff from her residence.

At approximately 1:30 a.m., Officer Coopersmith and Officer Glenn Koehler ("Officer Koehler") arrived at plaintiff's residence. The officers served plaintiff with the emergency PFA Order, and advised plaintiff that, pursuant to the order, she would have to leave the residence for approximately one and a half days. Plaintiff asserted to the officers that she was the sole leaseholder of the residence and that Winters did not reside there. Notwithstanding plaintiff's protestations, the officers proceeded to execute the PFA Order and removed plaintiff from her residence.

While inside the residence, the officers informed plaintiff that Winters had accused her of assaulting him with an electric dental flosser and that Winters was going to press criminal charges against plaintiff. Officer Koehler asked plaintiff to produce the dental flosser that was allegedly used to attack Winters. Plaintiff retrieved the dental flosser, as requested, and handed it to Officer Koehler, who then told plaintiff that he had to "take" the dental flosser with him.

On September 17, 1996, Officer Coopersmith filed simple assault and harassment charges against plaintiff based on the alleged altercation that occurred between plaintiff and Winters.*fn1 On October 15, 1996, a preliminary hearing was held on the simple assault and harassment charges against plaintiff. At that hearing, Winters testified that plaintiff had assaulted him with the dental flosser. Photographs taken by the police on the night of September 14, 1996 depicting Winters' injuries were entered as evidence. The District Justice concluded that the Commonwealth made out a prima facie case for simple assault and harassment, and the case was bound over for trial. Subsequent to the filing of the charges, Winters retracted his statement, and as a result, a nolle prosequi was entered as to the simple assault and harassment charges against plaintiff.*fn2 On December 11, 1996, plaintiff's record as to these criminal charges was expunged.

Plaintiff claims that the motive for defendants violating her constitutional rights arose from an incident involving the Palmer Township and Danville Police Departments. On June 30, 1996, plaintiff attempted to contact her adult son in Danville, Pennsylvania via certified mail. On July 26, 1996, plaintiff received a letter from her son's attorney, which stated that her son deemed plaintiff's contact as harassing, that he did not want to have any further contact with plaintiff, that he had contacted the police regarding this matter, and that any further contact by plaintiff would result in criminal prosecution. On August 9, 1996 around 10:00 p.m., at the request of the Danville Police Department, Officer Wayne Smith of the Palmer Township Police Department went to plaintiff's residence and delivered the following message to plaintiff: "If you continue to attempt to contact your son, you will be charged criminally." Thereafter, plaintiff wrote a letter to the Palmer Township and Danville Police Departments complaining of what she claimed was the officer's unprovoked, inappropriate, and harassing conduct of invading plaintiff's privacy by delivering a threatening message at such a late hour. No disciplinary action was taken against Officer Smith or anyone in the Palmer Township and Danville Police Departments as a result of plaintiff's letter. This incident hereinafter will be referred to as the "Danville incident."

Plaintiff asserts eight (8) counts against the defendants and seeks relief under 42 U.S.C. § 1983:*fn3 (1) defendants engaged in an unreasonable seizure of her property and denial of plaintiff's liberty interest in wrongfully evicting plaintiff from her home where she was the sole leaseholder, pursuant to the Fourth and Fourteenth Amendments; (2) denial of equal protection, pursuant to the Fourth, Fifth and Fourteenth Amendments;*fn4 (3) use of excessive force in throwing plaintiff's arm away from the bathroom door, pursuant to the Fourth and Fourteenth Amendments; (4) malicious prosecution of plaintiff for simple assault and harassment without probable cause, in violation of the Fourth and Fourteenth Amendments; (5) Pennsylvania law defamation claim for illegally releasing information regarding the simple assault and harassment charges to the local press; (6) defendants unreasonably seized plaintiff's property, namely the dental flosser, without a warrant, pursuant to the Fourth Amendment; (7) Chief Bruce Fretz ("Chief Fretz") has supervisory liability for approving the filing the of the criminal charges against plaintiff, and the failure to train and supervise officers in the use of proper physical force and appropriate execution of PFA Orders; and (8) Palmer Township and the Palmer Township Police Department have municipal liability and were deliberately indifferent to the custom and practice of officers using excessive force and improperly evicting people pursuant to a PFA Order. Plaintiff claims that defendants violated her civil rights in retaliation for plaintiff's earlier complaint concerning the inappropriate conduct of the Palmer Township Police Department in the Danville incident. Defendants assert that all of plaintiff's claims are legally flawed and that, therefore, they are entitled to summary judgment in their favor.


A. Summary Judgment Pursuant to Fed.R.Civ.P. 56(c).

Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must accept the non-movant's version of the facts as true, and resolve conflicts in the non-movant's favor. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


In assessing whether summary judgment should be granted, the Court will address each of plaintiff's claims in turn.

  A. Defendants Are Entitled to Qualified Immunity Against
       Plaintiff's Fourth Amendment Claim of Unreasonable

The test for the applicability of qualified immunity is well-settled:

  Government officials performing discretionary
  functions are "shielded from liability for civil
  damages insofar as their conduct does not violate
  clearly established statutory or constitutional
  rights of which a reasonable person would have
  known. . . . [T]he inquiry is whether a reasonable
  officer could have believed that his or her conduct
  was lawful, in light of clearly established law and
  the information in the officer's possession."

Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Under this test, in section 1983 actions, particularly those involving the Fourth Amendment, qualified immunity decisions require the Court to determine the currently applicable law, and whether that law was clearly established at the time the alleged constitutional violation occurred. See Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997). If the law was clearly established at the time of the conduct at issue, then the Court must determine whether the actions of the officers, equipped with the knowledge of clearly established law, were objectively reasonable. See Sharrar v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). Moreover, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Initially, with regard to plaintiff's Fourteenth Amendment claim, the Court finds that plaintiff has not specified what liberty interest was violated by defendants' allegedly unlawful act of eviction. Nowhere in plaintiff's complaint does plaintiff indicate a violation of a Fourteenth Amendment liberty interest, and only briefly does plaintiff mention in her response to defendants' motion for summary judgment that an arrest without probable cause is a deprivation of liberty and actionable under section 1983. The Court need not reach the issue of whether an arrest under these ...

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