United States District Court, E.D. Pennsylvania
May 26, 2004.
HORATIO NIMLEY, Plaintiff,
HELMUTH J.H. BAERWALD, JOHN McGOWAN, NICOLA DePALLO, and MICHAEL PATRICK, Defendants
The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge
MEMORANDUM AND ORDER
The action currently pending before the Court involves a civil rights
claim by plaintiff Horatio Nimley against defendants Township Manager,
Helmuth J. H. Baerwald, Chief of Police John McGowan, and police
officers, Nicola DiPallo and Michael Patrick (collectively "defendants"),
all of whom were employed by East Norriton Township. The defendants are
named both individually and in their official capacities as officers,
agents and/or employees of the Township of East Norriton. Plaintiff
alleges various claims under Title 42 U.S.C. § 1983 stemming from an
alleged improper stop, detainment, search and excessive use of force and
also brings a state law claim of assault and battery. Defendants now move
for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c).
Upon consideration of both the Motion and the plaintiff's Response, we
now grant the Motion and dismiss plaintiff's Amended Complaint with
prejudice. I. FACTUAL BACKGROUND
Plaintiff alleges that on November 10, 2000, while in the parking lot
of the Pennsylvania Department of Transportation ("PennDOT") located on
Swede Road, East Norriton, Pennsylvania, he was improperly stopped by
Defendant, Officer DePallo. (Am. Complaint at paragraphs 13-14). Earlier
on November 10, 2000, Cora Baratucci informed police that when she
arrived home with her grandson, an unknown male wearing dark clothing ran
from her bedroom and down the steps to the basement area of her home and
fled out her back door. (Affidavit of Probable Cause). She reported
missing jewelry from her home. (Id.) A canine unit was called
to the scene and picked up a scent at the rear door leading to a wooded
area and the officers followed the dog across woods towards Swede Road.
(Id.) While investigating this report, Defendant DePallo
observed plaintiff on Swede Road, about a half mile from Ms. Baratucci's
Defendants claim that plaintiff fit a generalized description of the
man who burglarized the home of Carla Baratucci and he emerged from the
wooded area where a canine police dog was following a scent. In addition,
defendants state that plaintiff had leaves and twigs in his hair, was
sweating and was carrying a white plastic bag. According to Officer
DePallo's report, Ms. Baratucci informed him that she was unable to
determine what skin color the suspect had, but indicated that he was
wearing a baseball cap, a black jacket and had a small stocky build. (Incident Report). Plaintiff was wearing dark
pants and a dark shirt when he was stopped, but was not wearing a hat or
jacket. Officer DePallo testified that he decided to stop plaintiff after
receiving a call from Officer Patrick that there might be a suspect to
the burglary approaching (DePallo dep at 74). He testified that "[he]
decided to stop the individual because it was odd for somebody to have
grass and leaves protruding out of their hair. It was November. I don't
believe he was wearing a jacket. He was sweating. And it was just odd to
[him]". (Id. at 74). Officer Patrick testified that when he saw
plaintiff "[his] first thought was, here comes a guy out of the area
where the dog is working on a the dog's on a trail in there. He
comes out into the road right next to it. He's fitting the description,
he's carrying a bag, he's sweating and he's got dark clothing." (Patrick
dep at 58).
In order to buy some time for backup to arrive, Officer Depallo falsely
informed plaintiff that he was looking for someone who had escaped from a
mental institution. (Depallo dep at 75). After plaintiff informed the
officer that he had never been admitted to a mental hospital, the officer
asked for his consent to search plaintiff and the bag he was carrying.
(Nimley dep at 49). Plaintiff asked whether he was being arrested or
charged with a crime and after being told that he was not, he advised the
officer that he would not consent to a search and that he was leaving.
(Am. Complaint at paragraphs 20-22). Plaintiff claims that notwithstanding his refusal to consent to a search, Officer DePallo
demanded that he place his bag on the hood of the police car and fearing
reprisal he complied with the officer's demand. (Am. Complaint at
paragraphs 23-24). Once plaintiff placed the bag on the vehicle, the
officer was able to see inside the bag and saw blue coin booklets.
(Depallo dep at 82). According to plaintiff's testimony, Officer Depallo
informed him that he was going to pat him down for weapons and asked him
to place his hands on the car, but did not actually pat him down at that
time. (Nimley dep at 51). Defendant Officer Patrick then arrived on the
scene. Plaintiff claims that he was eventually "briefly frisked around
the mid-section area for weapons." (Id. at 57). He claims that
after he informed Patrick that he had been misidentified as a patient
from a mental hospital*fn1, he went into the PennDOT building. According
to Officer Depallo, they did not stop plaintiff from leaving to go into
the building because they had received a call over the police radio
leading them to believe that a suspect had been apprehended. (Depallo dep
After receiving a second call and being informed that a suspect had not
been apprehended, Defendants Patrick and DePallo followed plaintiff into
the facility. (Id. at 91). According to Officer Patrick, he
approached plaintiff and told him that they needed his real name, and then followed him to the counter where he was going
to get his license. (Patrick dep at 83-84). Plaintiff proceeded to give
false names and/or social security numbers to the examiner. (Loftus dep
at 30-31; Depallo dep at 92-93). Plaintiff once again inquired as to
whether he was being arrested and was told that he was being detained in
investigatory detention until the sergeant arrived. (Patrick dep at 86).
Once he gave his correct name to the examiner, the officers were able to
ascertain that there were outstanding warrants for plaintiff, but it is
not entirely clear whether they became aware of the warrants prior to the
sergeant's arrival. (Depallo dep. at 93-94, 106).
According to plaintiff, after being informed that he was not being
arrested he attempted to leave, at which time DePallo and Patrick grabbed
him. After plaintiff told the officers that he was leaving, DePallo
informed him that he was "not going anywhere" and directed Patrick to
cuff one of plaintiff's hands while he cuffed the other. (Nimley dep at
66). Plaintiff claims in his complaint that Depallo and Patrick
"proceeded to pick plaintiff up and slam plaintiff to the floor,
repeatedly punching and kicking him for at least 4-5 minutes" and he was
then placed in custody. (Am Complaint at paragraphs 38-39). He stated
during his deposition that he was on the floor when they were trying to
handcuff him and "they were stepping all over [him], kicking [him] and
punching [him] and stuff like that." (Nimley dep at 69). According to the
officers, plaintiff attempted to push them out of the way, at which time they
attempted to cuff him. (Patrick dep at 86-88; Depallo dep at 94-96).
Officer Depallo and Officer Patrick both testified that during the
struggle plaintiff attempted to grab at Officer Patrick's duty belt.
(Depallo dep at 98-99; Patrick dep at 92). After additional officers
arrived they were able to take plaintiff to the floor and placed the
second cuff on his hands. (Patrick dep at 93; Nimley dep at 73). Once
plaintiff was placed in custody the officers patted him down and
discovered the jewelry from the burglary in his pockets, but no weapons.
(Depallo dep at 109). Plaintiff asked to see a nurse when he was being
transported to the police station. (Nimley dep at 75). After some time at
the station, he was transported by helicopter to Abington Memorial
Hospital where he remained overnight for treatment and observation.
Finally, plaintiff alleges in his Amended Complaint that Officer DePallo
was fired from the East Norriton Police Department "sometime between
November 15, 2000 and April 26, 2001 for among other things, having too
many civilian and other complaints lodged against him." (Am. Complaint at
Plaintiff originally filed a pro se Complaint in this matter, which was
dismissed on April 23, 2003, at which time he was granted leave to file
an Amended Complaint. An Amended Complaint was then filed against
Officers Depallo and Patrick and Township Manager, Helmuth Baewrwald and
Police Chief, John McGowan, all in both their individual and official capacities. Defendants now move, under Fed.
R. Civ. P. 56(c) for summary judgment.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) states that summary judgment is
proper "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 judgment as a matter of law." FED R. CIV. P. 56(c); see
also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986);
Williams v. Borough of West Chester, 891 F.2d 458, 463-464 (3d
Cir. 1989). A factual dispute is "material" only if it might affect the
outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). For there to be a "genuine" issue, a reasonable
factfinder must be able to return a verdict (or render a decision) in
favor of the non-moving party. Id.
On summary judgment, it is not the court's role to weigh the disputed
evidence and decide which is more probative, or to make credibility
determinations. Boyle v. County of Allegheny, Pennsylvania,
139 F.3d 386, 393 (3d Cir. 1998). Rather, the court must consider the
evidence, and all reasonable inferences which may be drawn from it, in
the light most favorable to the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962); Tiger Corp. v. Dow
Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict
arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving
party. See Anderson, 477 U.S. at 255.
Once the movant has carried its initial burden, Rule 56(e) shifts the
burden to the nonmoving party as follows:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as
otherwise provided in this rule must set forth
specific facts showing that there is a genuine
issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall
be entered against the adverse party.
FED. R. CIV. P. 56(e). However, to raise a genuine issue of
material fact "`the [summary judgment] opponent need not match, item for
item, each piece of evidence proffered by the movant,' but simply must
exceed the `mere scintilla' standard." Petruzzi's ICA Supermarkets,
Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224
, 1230 (3d Cir.),
cert. denied, 510 U.S. 994 (1993). Summary judgment may be
granted only if, after viewing all evidence in the light most favorable
to the non-movant, no jury could decide in that party's favor. Tigg
Corp., 822 F.2d at 361.
Plaintiff brings this action pursuant to Title 42 U.S.C. § 1983,
alleging violations of his Fourteenth Amendment right to equal
protection, his Fourth Amendment right to be free of unreasonable search
and seizure, and his Fourteenth Amendment right to substantive due process. In addition, he brings a claim against
DePallo and Patrick for assault and battery.
Claims Brought Pursuant to Title 42 U.S.C. § 1983:
A plaintiff may bring a § 1983 action if he alleges that a person
acting under color of state law deprived him of rights, privileges, or
immunities secured by the Constitution or laws of the United States.
42 U.S.C. § 1983 (1994). Thus, in order to state a cause of action under
§ 1983, a plaintiff must demonstrate that "(1) the defendants acted
under color of [state] law; and (2) their actions deprived [the
plaintiff] of rights secured by the Constitution or federal statutes."
Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997). "Section
1983 `is not a source of substantive rights,' but merely provides `a
method for vindicating federal rights elsewhere conferred.'" Graham
v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 1870 (1989)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3,
99 S.Ct. 2689, 2694, n.3 (1979)).
Plaintiff, in the case at bar, alleges that Defendants while acting
under color of law and pursuant to the policies and practices of the East
Norriton Police Department, deprived plaintiff of his rights, privileges
and immunities granted to him as a citizen of the United States
violating, in particular, his Fourteenth Amendment right to equal
protection, his Fourth Amendment right to be free of unreasonable search
and seizure, and his Fourteenth Amendment right to substantive due
process, all stemming from being stopped, detained and searched without legal justification and physically
abused and assaulted under the guise of restraining him. Defendants, in
turn, do not dispute that the defendant officers acted under color of
state law, but rather argue that plaintiff ultimately pled guilty to the
crime which was being investigated and that the actions of the officers
did not deprive plaintiff of any of his constitutional rights.
Count I-Fourteenth Amendment Equal Protection
In Count I of plaintiff's Amended Complaint, he alleges that Defendants
DePallo and Patrick violated his Fourteenth Amendment equal protection
rights by stopping, detaining, searching and physically abusing and
assaulting him solely because of his racial or ethnic background. (Am.
Complaint at paragraphs 48-49). He alleges that the actions of DePallo
and Patrick were in furtherance of the official policy, custom or
practice of the Township and defendants Baerwald and McGowan and at their
direction. He seeks compensatory damages, costs and attorneys' fees and
punitive damages against DePallo and Patrick.
The Equal Protection Clause of the Fourteenth Amendment provides that
no State shall "deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const., Amdt. 14, § 1. Its central
mandate is racial neutrality in governmental decision making. See,
e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823 (1967); McLaughlin v. Florida,
379 U.S. 184, 191-192, 85 S.Ct. 283, 287-288 (1964) see also Brown v. Board
of Education, 347 U.S. 483, 74 S.Ct. 686 (1954). An allegation of
racial discrimination in violation of the Constitution's guarantee of
equal protection cannot survive unless the plaintiff establishes that the
defendant acted with discriminatory intent. See Washington v.
Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048 (1976) (finding that a
showing of discriminatory purpose is necessary to bring a claim of racial
discrimination under the equal protection component of the Due Process
Clause of the Fifth Amendment or under the Equal Protection Clause of the
Fourteenth Amendment). In order to make an equal protection claim in the
profiling context plaintiff must prove that the officers' actions "(1)
had a discriminatory effect and (2) were motivated by a discriminatory
purpose." Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002),
citing Arlington Heights v. Metro Housing Dev. Corp,
429 U.S. 252, 97 S.Ct. 555 (1977); Washington v. Davis, 426 U.S. 229,
239-42, 96 S.Ct. 2040, 2047-2049 (1976); Chavez v. Illinois State
Police, 251 F.3d 612, 635-36 (7th Cir. 2001). The Third Circuit has
recognized that in profiling cases it is often difficult to submit direct
evidence that members of an unprotected class were not targeted and
statistical information of discrimination may be the only means of
demonstrating discriminatory effect. Bradley v. United States,
299 F.3d at 206, n. 11 (3d Cir. 2002). Such statistical information may
be relevant to prove discriminatory effect, but is rarely alone sufficient to establish
a violation of equal protection. Id.
In this case plaintiff has not offered proof of discriminatory effect
and has offered no proof that the officers' actions were done with the
intent to discriminate against him because of his race as he alleges.
Taking all of plaintiff's factual allegations as true, there is
absolutely nothing to demonstrate that the officers stopped, detained and
used force against plaintiff because of his racial or ethnic background.
Plaintiff has not set forth anything other than his blanket assertion
that he was stopped and detained because of his race to even argue that
the officers acted with discriminatory intent. Although plaintiff notes
that he is the only pedestrian the officers stopped, there is nothing to
contradict Officer DePallo's testimony that plaintiff was the only
pedestrian in the area. (DePallo dep at 58-59). There was no testimony to
indicate that there were any other pedestrians, especially coming from
the same wooded area, to even infer that plaintiff was stopped simply
because of his race. In fact, according to the PennDOT employee, Danial
Loftus, it was not common for pedestrians to come to the area where
plaintiff was stopped. (Loftus dep at 20-21). In addition, plaintiff
failed to provide any statistical evidence in an effort to demonstrate
discriminatory effect. He offered no evidence to contradict Officer
Depallo's testimony that in his experience there were not a greater number of racial and ethnic
minorities that were suspects of crimes or that were arrested. (Depallo
dep at 117-118).
Given that there is no evidence of discriminatory intent, plaintiff
cannot demonstrate a violation of equal protection. The officers
testified that they stopped plaintiff because he was emerging from the
same area where the dog had tracked the scent from the burglary. He was
also wearing dark clothing, was not wearing a jacket in November, was
sweating and had leaves and twigs in his hair. He was carrying a bag and
refused to give the officers any information including his name.
Plaintiff has not presented anything to contradict the officers'
testimony as to why they stopped plaintiff or to infer that he was
stopped, detained or assaulted because of his race. We therefore must
grant defendants motion for summary judgment to the extent that it seeks
dismissal of Count I of plaintiff's Amended Complaint, claiming a
violation of plaintiff's right to equal protection.
Count II Fourth Amendment
By way of the Second Count of plaintiff's Amended Complaint, he alleges
that Defendants DePallo and Patrick violated his Fourth Amendment rights
by stopping, detaining and searching him without legal justification and
by physically abusing and assaulting him under the guise of restraining
him. He alleges that the acts of DePallo and Patrick were done as
servants, agents or employees of the Township serving at the direction of Defendants Baerwald and
McGowan, in furtherance of the official policy, custom or practice of the
Township and defendants Baerwald and McGowan and with their knowledge.
Once again, plaintiff seeks compensatory damages, costs and fees and
punitive damages against DePallo and Patrick.
In an effort to undermine plaintiff's claims, defendants contend that
the issue of whether they had probable cause to stop, detain and search
plaintiff and whether they used excessive force is moot given the fact
that plaintiff pled guilty to burglary for the events of November 10,
2000. In the alternative they claim that even if the issue is not moot
they had probable cause to stop, detain and search plaintiff and used
objectively reasonable force.
As to their first argument, plaintiff entered a plea of guilty to two
counts of burglary and criminal conspiracy. (Ex. B of Defendants'
Motion). Defendants now claim that as a result of his guilty plea the
issue of whether defendants violated plaintiff's constitutional rights is
moot. However, plaintiff is not barred from litigating a Fourth Amendment
claim in a section 1983 action because he entered a plea of guilty in
state court. Haring v. Prosise, 462 U.S. 306, 321,
103 S.Ct. 2368, 2377 (1983); Linnen v. Armainis, 991 F.2d 1102 (3d Cir.
The Supreme Court in Harinq v. Prosis held that under
Virginia law, a guilty plea in a state criminal proceeding did not bar a subsequent section 1983 action where the issues to be determined in
the later case were not actually litigated or were not necessary to
support the judgment in the prior proceedings. Haring v.
Prosise, 462 U.S. at 316-17, 103 S.Ct. at 2374-2375. The Supreme
Court held that plaintiff's guilty plea in no way constituted an
admission that his Fourth Amendment claims had no merit. Id.,
462 U.S. at 317, 103 S.Ct. at 2374. "It is impermissible for a court to
assume that a guilty plea is based on a defendant's determination that he
would be unable to prevail on a motion to suppress evidence" since there
are many reasons a defendant might choose to enter a guilty plea.
Id. at 462 U.S. at 318, 103 S.Ct. at 2375-2376. While a guilty
plea results in a defendant's loss of any meaningful opportunity he might
otherwise have had to challenge the admissibility of evidence obtained in
violation of the Fourth Amendment, "it does not follow . . . that a
guilty plea is a `waiver' of antecedent Fourth Amendment claims that may
be given effect outside the confines of the criminal proceeding.
Id., 462 U.S. at 322, 103 S.Ct. at 2377. In addition, the court
found that the justifications for denying habeas review of Fourth
Amendment claims are not applicable to a Section 1983 action.
In the case of Linnen v. Armainis the Third Circuit applied
the Supreme Court's reasoning in Haring and held that the
plaintiff in a section 1983 action was able to pursue Fourth Amendment
claims after entering a guilty plea because he had not pursued a suppression hearing and therefore the issues involved had not been
"actually litigated" in state court. Linnen v. Armanis, 991
F.2d at 1106. In this case, just as in Linnen, plaintiff
entered a plea of guilty without pursuing a suppression hearing and
therefore did not litigate his Fourth Amendment claims in state court.
Also, as in Linnen, there is no indication that the denial of
plaintiff's PCRA petition was actually based upon the litigation of the
merits of his Fourth Amendment claims. See Linnen, 991 F.2d at
1108. Therefore, we find that the fact that plaintiff entered a plea of
guilty to two counts of burglary, one of which was the crime being
investigated when he was stopped, detained and searched, does not serve
as a defense to any Constitutional violations perpetrated by defendants
and does not render plaintiff's claims moot. Id.
We therefore must examine defendants' alternative argument that the
officers' actions did not violate plaintiff's Fourth Amendment rights.
The Fourth Amendment, made applicable to the States by the Fourteenth
Amendment, Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623,
1628 (1963), provides in pertinent part that the "right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated. . . ." U.S.
CONST., amend. IV. In order to establish a claim under the Fourth
Amendment, a plaintiff must show that the actions of the defendant: (1)
constituted a "search" or "seizure" within the meaning of the Fourth Amendment, and (2) were "unreasonable" in
light of the surrounding circumstances. Parker v. Wilson, Civ.
A. No. 98-3531, 2000 WL 709484, *3 (E.D. Pa. May 30, 2000) (citing
Brower v. County of Inyo, 489 U.S. 593, 595, 600,
109 S.Ct. 1378 (1989). A seizure is a restraint of liberty by show of force or
authority, see Florida v. Bostick, 501 U.S. 429, 434, 111 So.
Ct. 2382, 2386 (1991), and it occurs "when a reasonable person in the
position of the plaintiff would not feel free to decline a request of a
government agent or to terminate an encounter with a government agent."
Brown v. Commonwealth, Civ. A. No. 99-4901, 2000 WL 562743, *4
(E.D. Pa. May 8, 2000).
The Fourth Amendment contains prohibitions against several types of
seizures. First, it precludes a police officer from arresting and
incarcerating a citizen except upon probable cause. See Sharrar v.
Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (stating that, in a §
1983 action, the key element of a cause of action for unlawful arrest is
that the law enforcement agent arrested the plaintiff without probable
cause); Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d
Cir. 1995) (stating that "an arrest based on probable cause could not
become the source of a [§ 1983] claim for false imprisonment"). The
United States Supreme Court has characterized probable cause as a "fluid
concept turning on the assessment of probabilities in particular
factual contexts not readily, or even usefully, reduced to a neat
set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317,
2329, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33 (1983). A
showing of probable cause thus requires "proof of facts and circumstances
that would convince a reasonable, honest individual that the suspected
person is guilty of a criminal offense." Lippay v. Christos,
996 F.2d 1490, 1502 (3d Cir. 1993). Although probable cause calls for
more than mere suspicion, it does not mandate that the evidence at the
time of the arrest be sufficient to prove guilt beyond a reasonable
doubt. Warlick v. Cross, 969 F.2d 303, 306, reh'g
denied, (7th Cir. Sept. 2, 1992); Orsatti v. New Jersey State
Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Indeed, the ultimate
finding of guilt or innocence, or even dismissal of charges arising out
of an arrest and detention has no bearing on whether the arrest was
valid. Pansy v. Preate, 870 F. Supp. 612, 617-618 (M.D.
Pa. 1994), aff'd, 61 F.3d 896 (3d Cir. 1995) (citing Pierson
v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218 (1967).
A brief seizure of an individual by police, based on a reasonable
suspicion of criminal activity, an investigatory detention, is a
"narrowly drawn" exception to the probable cause requirement of the
Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868
(1968). The Supreme Court in Terry held that a police officer
may stop an individual reasonably suspected of criminal activity,
question him briefly, and perform a limited pat down frisk for weapons. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880.
The touchstone in Terry was the reasonableness of the
intrusion. Id. The Court balanced the need of law enforcement
officials against the burden on the affected citizens and considered the
relation of the policeman's actions to his reason for stopping the
suspect. See United States v. Sharpe, 470 U.S. 675, 682-83,
105 S.Ct. 1568, 1573-74 (1985). The Supreme Court held in Terry v.
Ohio, that probable cause is not required for an investigatory stop
if an officer has a reasonable suspicion based upon articulable facts
that criminal activity is afoot or that a crime is about to be committed.
Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. The Supreme Court
has since held that investigatory stops based upon reasonable suspicion
rather than probable cause, in cases where officers are investigating a
crime which has already been completed, can also withstand Fourth
Amendment scrutiny. U.S. v. Hensley, 469 U.S. 221, 229,
105 S.Ct. 675, 680 (1985). The Court in U.S. v. Hensley held that
"if police have a reasonable suspicion, grounded in articulable facts,
that a person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made to
investigate that suspicion." Id. Courts must look at the
totality of the circumstances in making reasonable suspicion
determinations. United States v. Arvizu, 534 U.S. 266,
122 S.Ct. 744 (2002).
The Fourth Amendment further prohibits the use of unreasonably
excessive force when making an arrest or during investigative stops. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865,
1871 (1989). Whether a police officer used excessive force in the course
of an investigatory stop or other "seizure" of a free citizen must be
determined using a reasonableness test, giving careful attention to the
facts and circumstances of each particular case, and recognizing that the
use of some coercion necessarily inheres in the officer's right to make
such an investigatory stop or seizure. Graham, 490 U.S. at 396,
109 S.Ct. at 1872. These facts and circumstances include "the severity of
the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Id. As the
United States Supreme Court has held:
The "reasonableness" inquiry in an excessive force
case is an objective one: the question is whether
the officer['s] actions are "objectively
reasonable" in light of the facts and
circumstances confronting [him], without regard to
[his] underlying intent or motivation. An
officer's evil intentions will not make a Fourth
Amendment violation out of an objectively
reasonable use of force; nor will an officer's
good intentions make an objectively unreasonable
use of force constitutional.
Id., 490 U.S. at 397, 109 S.Ct. at 1872. The
"`reasonableness' of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id. Here, Defendants claim that they had legal justification to stop,
detain and search plaintiff and to eventually arrest him. We find that
based upon the facts known to the officers the initial investigative stop
of plaintiff was certainly reasonable. The officer was informed that a
suspect might be coming and plaintiff emerged from a wooded area to which
the police dog had tracked a scent during the burglary investigation.
Plaintiff was carrying a bag, had leaves and twigs in his hair, was not
wearing a jacket or hat in November, both of which are easily removable,
and he was wearing dark clothing. We find that these facts alone were
sufficient justification for Officer Patrick to pull alongside of
plaintiff to simply ask him questions. Even if a reasonable person would
not have felt free to leave, meaning that there was a seizure, we find
that this was not in violation of the Fourth Amendment, but rather was a
valid Terry stop. At that time the officer saw that plaintiff
was sweating and he refused to answer questions, including his name.
Officer DePallo also testified that plaintiff's pants pockets were
bulging and he thought perhaps he had a weapon. (DePallo dep at 88-89).
Given the circumstances, the defendant was justified in asking plaintiff
to place the bag on the car and to conduct a brief pat down for weapons
(which it is not entirely clear that he actually did at that time). Once
plaintiff placed his bag on the police car Officer DePallo saw the coin
books inside. Although, the items listed from the burglary being
investigated did not contain coin booklets, given that plaintiff refused to give any
information about the bag, this may still have added to their suspicion,
giving them even further justification for detaining plaintiff for
questioning. The circumstances were sufficient to justify a brief search
for weapons and continued detention during the Terry stop.
After allowing plaintiff to leave and then discovering that a suspect
had not been apprehended, the officers followed plaintiff inside the
PennDOT building where he gave false names and social security numbers to
the examiner. (Loftus dep at 30-31). After plaintiff finally gave the
examiner his correct information, the officers approached plaintiff and
told him that they would like to hold him for questioning. (Id.
at 51). Given the circumstances we find that this was also proper and was
a continuation of the Terry stop. They informed him that he was
not under arrest but he was being held for investigatory detention, at
which time plaintiff admittedly attempted to leave and pushed past the
officers. According to Mr. Loftus, "[plaintiff] physically tried to bump
or move his way around the police officers so as to leave . . ."
(Id. at 52).
It is undisputed that when the officers attempted to handcuff him in
order to detain him, plaintiff began resisting and "fighting" with them.
According to plaintiff's testimony, when he attempted to leave they informed him that they were going to handcuff him,
but he struggled and did not allow them to place the second handcuff on
his wrist. (Nimley dep at 67). There appears to be some dispute as to
whether the officers knew plaintiff had outstanding warrants when they
attempted to handcuff him or if they discovered that after the sergeant
arrived at the scene. However, we do not find this to be a material fact.
Even without examining whether the officers had probable cause to arrest
plaintiff for this burglary or for the prior warrants at this time, the
fact that the officers handcuffed plaintiff does not automatically
convert an investigatory detention into an arrest. See Baker v.
Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995) (stating "there
is no per se rule that pointing guns at people, or handcuffing them,
constitutes an arrest"), citing United States v. Hastamorir,
881 F.2d 1551, 1557 (11th Cir. 1989) (finding use of handcuffs and gun during
investigatory stop reasonable). Rather, the "use of guns and handcuffs
must be justified by the circumstances . . . Moreover, [the court] must
look at the intrusiveness of all aspects of the incident in the
aggregate." Baker v. Monroe Township, 50 F.3d at 1193. In this
case, given that plaintiff was attempting to leave by pushing his way
past the officers, we find that it was reasonable for the officers to use
handcuffs to continue to detain him. As discussed below, even if the use
of handcuffs was not justified by the factual circumstances, which we
believe it was, and resulted in a constitutional violation, we find that the officers' belief that their conduct was justified
by the facts under existing law was reasonable and that they would be
entitled to the defense of qualified immunity. See Wiers v.
Barnes, 925 F. Supp. 1079, 1089 (D. Del. 1996) (finding that
defendant who had transported plaintiff while handcuffed was entitled to
qualified immunity even if conduct violated Fourth Amendment, where acts
were such that a reasonable officer could have committed them).
As to plaintiff's claim of excessive force, according to plaintiff,
during the struggle he was picked up and slammed to the floor, where he
eventually was handcuffed after additional officers arrived. (Nimley dep
at 67-69). When asked who picked him up, plaintiff testified that "when
you're fighting you're not exactly focusing on who is doing what, so I
don't know . . ." (Nimley dep at 67). Mr. Loftus, the PennDOT employee
who was present, testified that "there was one police officer who had one
hand behind Mr. Nimley's back. The other hand was waving in the air back
and forth so as not to have his other hand cuffed . . ." Mr. Loftus
further stated that during this struggle plaintiff was yelling out "my
brother, my sister, help me, this is police brutality, look what they are
doing." (Loftus dep at 52-53). According to plaintiff's testimony, even
after one hand was cuffed he was determined not to allow the officers to
place his second hand in cuffs and he attempted to make a scene during the struggle. Plaintiff testified
that when the officers discussed handcuffing he was "thinking to [him]
self, you're never going to get this hand handcuffed or it won't be easy
getting it handcuffed." (Nimley dep at 72). According to Mr. Loftus,
while plaintiff was resisting with his one hand flailing in the air, the
officers and plaintiff ended up moving towards a wall, knocking over a
divider and moving several computers. (Loftus dep at 54-57). According to
Officer Patrick, while resisting, plaintiff twisted his hand causing the
officer to injure his finger. (Patrick dep. at 92-93). He stated that he
attempted to take out a second set of cuffs to interlock them so he would
not have to get as close. Plaintiff grabbed at his belt and caused his
microphone cord to get into the cuff so that he was cuffed to plaintiff.
(Id. at 89). He also stated that plaintiff grabbed at the
outside container of mace on his belt. (Id. at 91-92). Officer
Patrick testified that he was unable to let go with one hand even to push
the button on his microphone because plaintiff was attempting to grab at
his belt. (Id. at 93). He also testified that during the
struggle plaintiff backed them up towards the wall. (Id.).
It is undisputed that plaintiff attempted to leave and even after the
officers attempted to handcuff him he resisted by "fighting" with the
officers. The officers were clearly required to use some degree of force
to detain him given his resistence, especially after one of his hands was cuffed and he continued to
resist. The issue is whether the degree of force used was reasonable.
Plaintiff admits that he was not going to allow the officers to cuff his
second hand and that he was fighting with them. He also admits that they
were only able to cuff him after additional officers arrived. Plaintiff
acknowledges that when the officers put their knees on him, allegedly
punching and kicking him and "stepping all over him", they were trying to
place the second handcuff on his wrist. They were asking him to stop
struggling, but he still refused to allow them to cuff his second hand.
(Nimley dep at 68-69). Given plaintiff's conduct, we find that the
officers actions in allegedly bringing him to the floor in order to
restrain him and to place the second handcuff on his wrist were
reasonable and there was no violation of his Fourth Amendment rights.
With regard to his alleged injuries, although plaintiff alleged in the
Amended Complaint that he "suffered severe and permanent injury including
bruises and fractures to his neck, and bruises about the body resulting
in his hospitalization", this is not consistent with his testimony.
Plaintiff indicated that prior injuries were aggravated. He had problems
with his left chest, which flare up when he gets manhandled. He also
testified that his neck and eye bothered him because he had just had eye
surgery at Temple for an orbital fracture he sustained when he was beaten
with a bat in a previous altercation. (Id. at 75-76). However,
when asked whether he has any injuries or anything that bothers him
resulting from the incident, he testified that he does not.
(Id. at 88). While the presence of injuries may be relevant in
an excessive force case, we do not find that plaintiff has presented any
evidence that the force used by the officers to retrain him was excessive
in light of the circumstances. We therefore do not find Fourth Amendment
In further effort to obtain a dismissal of all of the federal causes of
action against them, defendants claim an entitlement to qualified
immunity. The doctrine of qualified immunity shields government officials
"for 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." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). Restated more precisely,
"whether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally
turns on the `objective legal reasonableness' of the action assessed in
light of the legal rules that were clearly established' at the time it
was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 So.
Ct. 303, 3038 (1987) (quoting Harlow, 457 U.S. 819);*fn2 see
also Pro v. Donatucci, 81 F.3d 1283, 1286 (3d Cir. 1996). The
availability of qualified immunity as a defense is a question of law.
Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793,
reh'g denied, 501 U.S. 1265, 222 S.Ct. 2920 (1991).
The qualified immunity analysis breaks down into two issues. First, the
court must determine whether the facts, taken in the light most favorable
to the plaintiff, show a constitutional violation. If the plaintiff fails
to make out a constitutional violation, the qualified immunity inquiry is
at an end and the officer is entitled to immunity. Bennett v.
Murphy, 274 F.3d 133, 136 (3d Cir. 2002). Once plaintiff produces
evidence of a constitutional violation, courts evaluating a qualified
immunity claim must proceed to the second step and decide whether the
constitutional right was clearly established. Id. In other
words, the reviewing court must query whether, in the factual scenario
established by the plaintiff, a reasonable officer would have understood
that his actions were prohibited. Id. at 136. "If it would not
have been clear to a reasonable officer what the law required under the facts alleged, he is entitled to qualified
immunity." Id. at 136-137. If, on the other hand, the
requirements of the law would have been clear, the officer must stand
trial. Id. at 137.
Using the context of an excessive force case, the United States Supreme
Court has recently undertaken to clarify the standard for qualified
immunity. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151
(2000), it held that:
[t]he concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made
as to the legal constraints on particular police
conduct." It is sometimes difficult for an officer
to determine how the relevant legal doctrine, here
excessive force, will apply to the factual
situation the officer confronts. An officer might
correctly perceive all of the relevant facts but
have a mistaken understanding as to whether a
particular amount of force is legal in those
circumstances. If the officer's mistake as to what
the law requires is reasonable, however, the
officer is entitled to the immunity defense.
Id., 533 U.S. at 205. Thus, an officer may contend that
he reasonably, but mistakenly, believed that his use of force was
justified by the circumstances as he perceived them. In the event of such
a reasonable, but mistaken belief, an officer is entitled to qualified
immunity. Id. at 206.
Defendants now assert that the federal claims against them must be
dismissed on grounds of qualified immunity. Specifically, they argue that
they conducted a lawful and proper stop of plaintiff under the
circumstances and plaintiff's own conduct brought about his arrest. In addition, they once again note that plaintiff pled
We turn first to the threshold question of whether, taken in the light
most favorable to the party asserting the injury, the facts alleged show
the officers' conduct violated a constitutional right. As we noted above,
the defendant officers' actions in stopping and detaining plaintiff and
in using force to restrain him were legally justified and did not violate
plaintiff's constitutional rights. Therefore, we need not go any further
to determine that the officers are entitled to the defense of qualified
immunity. However, as noted above, even if plaintiff's Fourth Amendment
rights were violated, we find that the officers are entitled to qualified
immunity. First, even assuming that the officers did not yet have
probable cause to arrest plaintiff at the time he was handcuffed and that
the circumstances of this case did not warrant handcuffing plaintiff
during an investigatory detention, (which we find they did), the
defendants' belief that such conduct was warranted under the law was
still reasonable. See Wiers v. Barnes, 925 F. Supp at 1089. In
addition, even if the degree of force used by the officers was found to
be excessive and a violation of plaintiff's Fourth Amendment rights, we
find that defendants would still be entitled to qualified immunity. Given
the undisputed facts including the fact that plaintiff was attempting to
push past the officers, that he continued to fight and resist with one hand
cuffed and that two officers were unable to restrain him in order to
handcuff him, it was reasonable for the two officers and additional
officers arriving at the scene to believe that it was necessary to
restrain plaintiff and to use a degree of force including taking
plaintiff to the ground in order to handcuff his second hand. Even
assuming that the degree of force used was excessive, we find that the
officers' belief that such force was necessary was reasonable, even if
mistaken. Even if the officers' conduct was not justified by the
circumstances (which we find it was), they engaged in conduct in which a
reasonable officer could have engaged and are therefore entitled to
qualified immunity. See Pikel v. Garrett, 55 Fed. Appx. 29, 33,
2002 WL 31479064, *4 (3d Cir. (Pa) Nov. 7, 2002)(holding that where the
law established was highly dependant upon a balance of circumstances the
reasonableness of force was a "close call" and defendant was therefore
entitled to qualified immunity); See also Wiers v. Barnes,
925 F. Supp. 1079, 1088 (D. Del. 1996) (holding defendant was entitled to
qualified immunity where even if the officers' conduct was not warranted
by the circumstances and there was a violation, the officer engaged in
conduct in which a reasonable officer would have engaged). Accordingly,
Count II of plaintiff's Amended Complaint, alleging Fourth Amendment
violations must be dismissed. Count III Fourteenth Amendment Substantive Due Process
Plaintiff alleges in Count III of his Amended Complaint that Defendants
DePallo and Patrick violated his substantive due process rights by
stopping, detaining and searching him without legal justification and by
physically assaulting him. In this Count he alleges that Defendants
Baerwald and McGowan "had learned of previous incidents involving at a
minimum defendant DePallo wherein this officer had used unreasonable
force on others he had arrested." (Complaint at 73). He claims that
Baerwald and McGowan took no action to discipline DePallo or to order him
not to repeat such incidents, thus tacitly authorizing such conduct. (Am.
Complaint at paragraph 74). Plaintiff also alleges a failure to train and
to discipline on the part of defendants Baerwald and McGowan.
(Id. at paragraphs 75-82). Finally, he alleges that Baerwald
and McGowan approved or ratified the officers' conduct and seeks
compensatory damages, costs and fees and punitive damages. (Id.
at paragraphs 83-89).
We find that plaintiff's claims are not actionable as a violation of
substantive due process. See Albright v. Oliver, 510 U.S. 266,
114 S.Ct. 807 (1994); Graham v. Connor, 490 U.S. 386,
109 S.Ct. 1865 (1989). In both Graham v. Connor and Albright v.
Oliver the Supreme Court held that "where a particular Amendment
provides an explicit textual source of constitutional protection against
a particular sort of government behavior, that Amendment, not the
more generalized notion of substantive due process, must be the guide for
analyzing these claims." Albright v. Oliver, 510 U.S. at 274,
114 S.Ct. at 813, citing Graham v. Connor, 490 U.S. at 395, 109
S.Ct. at 1871. In Albright the Supreme Court held that the
petitioner's substantive due process claim arising from an arrest without
probable cause could afford him no relief. The Court stated that it
expressed no view as to whether his claims would succeed under the Fourth
Amendment because he had not presented that question. Albright,
510 U.S. at 275, 114 S.Ct. at 814.
In this case, in addition to plaintiff's substantive due process claim
pertaining to his stop, detention, search and the officer's use of
excessive force, plaintiff has also alleged these same claims were in
violation of the Fourth Amendment in Count II of his Amended
Complaint*fn3. Since these claims are appropriate to be considered in
terms of the Fourth Amendment, they will not be addressed in terms of a
substantive due process claim. Therefore, Count III of plaintiff's
Amended Complaint must also be dismissed.
State Law Causes of Action-Assault and Battery-Count IV: In the final Count of plaintiff's Amended Complaint, plaintiff alleges
a state law claim of assault and battery. He asserts that defendants
DePallo and Patrick acting within the scope of their authority as
officials, employees, agents and/or representatives of the Township
unlawfully assaulted and battered him. Plaintiff claims that their
actions were so malicious, intentional and displayed such a reckless
indifference that punitive damages are warranted. Defendants, in turn,
respond that since Count IV of plaintiff's Amended Complaint is premised
upon supplemental jurisdiction pursuant to 28 U.S.C. § 1367 and no
federal questions survive, this court no longer has jurisdiction over
this Count of the Complaint. In addition, they argue that the claim is
barred by the Pennsylvania Political Sub-Division Tort Claims Act.
We agree that since there are no federal questions remaining this Court
should decline to exercise jurisdiction over plaintiff's state law
claims. See 28 U.S.C. § 1367 (c)(3); See also
Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)
(holding that if federal claims are disposed of prior to trial, the
non-federal claims should likewise be dismissed). Therefore Count IV of
plaintiff's Amended Complaint must also be dismissed. Accordingly,
defendants' Motion will be granted and plaintiff's Amended Complaint will
be dismissed in its entirety. An appropriate Order follows. ORDER
AND NOW, this day of May, 2004, upon consideration of the Motion For
Summary Judgment pursuant to Federal Rule of Civil Procedure 56, by
defendants, Helmuth J.H. Baerwald, John McGowan, Nicolla DePallo, and
Michael Patrick, and the Response of plaintiff Horatio Nimley, it is
hereby ORDERED that the Motion is GRANTED and the plaintiff's Amended
Complaint is DISMISSED.
It is so ORDERED.
BY THE COURT: