United States District Court, M.D. Pennsylvania
September 21, 2005.
JAMIE KRAUSE, t/d/b/a KRAUSE TRUCKING, INC., Plaintiff
CURTIS PASSARO, TONY MARTINELLI, SEAN ROBBINS, and DARIL ZAVISLAK, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is the defendants' motion for
summary judgment in the instant civil rights action. The parties
have briefed their positions, and oral argument has been held.
The matter is thus ripe for disposition.
The facts of this case are largely undisputed and are as
follows. On January 14, 2002, a driver was hauling wheat in
plaintiff's tractor trailer. At approximately 1:30 p.m.,
Defendant Curtis Passaro, a Motor Carrier Enforcement Officer
employed by the Pennsylvania Department of Transportation, pulled
over the tractor trailer near Mifflinville, Columbia County, near
the truck's destination, Brandt Mills Inc. Compl. ¶ 15. The truck
was hauling #2 Red Wheat. Compl. ¶ 16. Passaro cited the driver
for carrying too much weight and contacted Defendant Tony
Martinelli, an Environmental Protection Specialist with the
Pennsylvania Department of Environmental Protection, who
subsequently arrived on the scene. The press also arrived. Compl.
¶ 17. Martinelli issued a citation for hauling food stuffs in a
vehicle used to transport waste in violation of 75 PA.C.S.A. §
4909(a)(1). The driver had hauled demolition waste in the truck
to a landfill in Ohio and was hauling the wheat to the mill on
the return trip. Passaro told the press about the situation, and
the press reported that Krause had been hauling "garbage" before
hauling the wheat. Compl. ¶ 18. Passaro and Martinelli then
telephoned plaintiff from the scene and told him they were going
to dump the wheat in a landfill and confiscate the truck. Compl.
Passaro and Martinelli then took the truck, dumped the wheat at
a landfill and held the truck in a secret location for nine
months. They never held a forfeiture hearing on the truck. They
charged Plaintiff Jamie Krause for the landfill fees and fined
him $10,000.00. The complaint asserts that Passaro and Martinelli
were "assisted and superseded" by Defendant Daril Zavislak, a
Special Investigator with the Office of Chief Counsel of the
Pennsylvania Department of Environmental Protection. Compl. ¶ 21.
During this time period, Defendant Sean Robbins, an attorney for
the Department of Environmental Resources was contacted by
plaintiff and plaintiff's counsel regarding the return of the
tractor trailer. Compl. ¶ 25.
The seizure of the truck for nine months allegedly caused the
plaintiff to enter into bankruptcy. It was eventually repossessed
and the plaintiff's business is now defunct. Compl. ¶ 24.
Plaintiff was eventually found not guilty of violating 75
PA.C.S.A. § 4909(A)(1). Compl. ¶ 35. He had originally been found
guilty of the charge by a district justice and then appealed to
the Court of Common Pleas of Columbia County which found him not
guilty. The defendants are alleged to have kept the truck because
they believed plaintiff would agree to drop the appeal in return
for the truck. Compl. ¶ 35-37.
Plaintiffs subsequently brought the instant action asserting
deprivations of his First, Fourth and Fourteenth Amendment rights
for retaliation, unlawful searches and seizures, deprivation of
procedural and substantive due process and for conspiracy to deprive him of
these rights pursuant to 42 U.S.C. § 1983 ("section 1983").
Subsequently, we granted in part a motion to dismiss filed by the
defendants. We dismissed plaintiffs' substantive due process
claim. Remaining in the case are plaintiffs' claims of:
deprivation of procedural due process and equal protection;
violation of the First Amendment and Fourth Amendment and
At the close of discovery, defendants filed the instant motion
for summary judgment, bringing the case to its present posture.
After a careful review, and for the reasons that follow, we will
grant the motion for summary judgment.
Standard of review
Granting 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. See Knabe v.
Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R.
CIV. P. 56(c)). "[T]his standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party
opposing the motion. International Raw Materials, Ltd. v.
Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is
such that a reasonable jury could not return a verdict for the
non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is
material when it might affect the outcome of the suit under the
governing law. Id. Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its burden
by showing that the evidentiary materials of record, if reduced
to admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial. Celotex v. Catrett,
477 U.S. 317, 322 (1986). Once the moving party satisfies its burden,
the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing
that there is a genuine issue for trial. Id. at 324.
As this case is brought pursuant to 42 U.S.C. § 1983 for
constitutional violations we have jurisdiction under
28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.") We have supplemental
jurisdiction over the plaintiff's state law claims pursuant to
28 U.S.C. § 1367.
Defendants raise the following six issues in their motion for
summary judgment: 1) Whether the initial seizure of Krause's
truck was constitutional; 2) Whether defendants violated
plaintiff's right to procedural due process by disposing of the
wheat and by not initiating forfeiture proceedings for the
tractor-trailer; 3) Whether plaintiff was treated arbitrarily and
capriciously such as to violate his right to equal protection; 4)
Whether, even if a plea bargain was offered, that plea bargain
violated plaintiff's First Amendment right; 5) Whether statutory
immunity protects the defendants from the defamation action; and
6) Whether defendants have qualified immunity for their actions.
We will address the issues in seriatim.
1. Initial seizure of plaintiff's truck
Plaintiff asserts that the seizure of his truck violated the
Fourth Amendment prohibition of unreasonable seizures. Defendants' position is that whether or
not the decision to seize the truck and its contents was
reasonable under the Fourth Amendment depends on if they had
probable cause that 75 Pa.C.S. § 4909(a)(1) ("section 4909") had
Section 4909 makes it unlawful to "transport? or knowingly
provide? a vehicle for the transportation of any food product or
produce intended for human consumption in a vehicle which has
been used to transport any municipal, residual or hazardous waste
or any chemical or liquid, in bulk, which is not a food product
or produce." 75 Pa.C.S. § 4909(a)(1).
Probable cause exists when facts and circumstances within the
officer's knowledge are sufficient in themselves to warrant
reasonable person to believe that offense has been or is being
committed. Wilson v. Russo, 212 F.3d 781, 789-90 (3d 2000).
According to the record, the defendant possessed reasonable
suspicion in order to make a stop of the vehicle and probable
cause to seize it. Defendant Passaro, a Pennsylvania Department
of Transportation Motor Carrier Enforcement Officer observed the
truck and believed that it was over the legal weight limit. (Def.
Ex. B, Passaro Dep. at 37). Upon pulling the truck to the side of
the road, Defendant Passaro had a conversation with the driver,
and the driver indicated that he was hauling wheat from Ohio. The
driver further informed Passaro that the truck had been used to
transport demolition waste from Brooklyn, New York to a landfill
in Ohio. (Def. Ex. B, Passaro Dep. at 39-42). As set forth above,
Pennsylvania law prohibits transporting food for human
consumption in a vehicle that has been used to transport waste.
75 Pa.C.S. § 4909(a)(1). Accordingly, after speaking with the
driver, Passaro had probable cause to believe that section 4909
had been violated.
Plaintiff argues that whether the defendants possessed probable
cause to seize the tractor trailer is irrelevant. Once the stop was made, plaintiff believes that the
defendants could have obtained a warrant for the truck and/or the
wheat, but they did not and thus their seizure was
unconstitutional. Plaintiff opines that one should not be
deprived of his property without a warrant unless exigent
circumstances exist. Plaintiff's argument is without merit.
The United States Supreme Court has held that the
Fourth Amendment does not require a warrant before seizing an automobile
from a public place if the authorities have probable cause to
believe the automobile itself is forfeitable. Florida v. White,
526 U.S. 559, 565-66 (1999). Pennsylvania law provides for the
forfeiture of vehicles used to violate the law. 75 PA.C.S.A. §
4909(c).*fn1 Accordingly, because Defendant Passaro
possessed probable cause that plaintiff utilized the truck to the
violate the law, he also had probable cause to believe that the
automobile itself was forfeitable. No warrant was needed to seize
the truck, and plaintiff's Fourth Amendment claim fails.
2. Procedural due process/forfeiture proceedings
Plaintiff also asserts a procedural due process claim based
upon the forfeiture and the defendants' continuing possession of
the vehicle without initiating any type of formal forfeiture
procedure. Defendants contend that no procedural due process
claim is cognizable because all the process that was due was
provided by the Pennsylvania Rules of Criminal Procedure.
Pennsylvania has a mechanism for him to challenge the seizure,
and he did not to use it. We agree with the defendants.
To maintain an action for intentional or negligent deprivation
of property under section 1983, Plaintiff must show that: (1) Defendants acted under color of
state law; and (2) Plaintiff has no adequate post-deprivation
state remedy to redress the wrong. Hudson v. Palmer,
468 U.S. 517, 533 (1984).
In the instant case, it cannot be disputed that the defendants
acted under color of state law. Plaintiff, however, did have an
adequate post-deprivation state remedy. Rule 588 of the
Pennsylvania Rules of Criminal Procedure provides as follows:
"A person aggrieved by a search and seizure whether or not
executed pursuant to a warrant, may move for the return of the
property on the ground that he or she is entitled to lawful
possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was
PA.R.CRIM.PRO. 588(a). This section provides sufficient due
process to the plaintiff. See Marsh v. Ladd, No. 03-5977,
2004 WL 2441088, at * 7 (E.D. Pa. Oct. 27, 2004).
Plaintiff did not utilize the mechanism provided by Rule 588
for the return of his property. He cannot now complain that the
state's retention of his property violated his rights. Judgment
shall be granted to the defendants on plaintiff's procedural due
3. Equal Protection
Defendants attack the plaintiffs' equal protection claim on the
grounds that plaintiff cannot provide evidence of any similarly
situated persons who were treated in a different manner from him.
Plaintiff has not addressed this issue in his brief. It shall be
deemed, therefore, that he does not oppose judgment in favor of the defendants on this issue. See Local Rule 7.6.
Moreover, the Fourteenth Amendment of the United States
Constitution provides that state cannot "deny to any person
within its jurisdiction the equal protection of the laws." "This
is not a command that all persons be treated alike but, rather, a
direction that all persons similarly situated should be treated
alike." Artway v. Attorney General of State of N.J.,
81 F.3d 1235, 1267 (3d Cir. 1996) (internal quotation marks omitted). It
is axiomatic, therefore, that to establish an equal protection
claim, the plaintiff must demonstrate that similarly situated
persons were treated better than he was. Plaintiff has not
presented any evidence of such treatment, and his Equal
Protection claim fails on the merits.
4. Plea Bargain/First Amendment
Plaintiff asserts that his First Amendment rights were violated
because he refused to plead guilty. (Compl. ¶ 36). He claims that
he was told that if he pled guilty, his truck would be returned
to him. (Id.). Defendants argue that plaintiff was simply going
through plea bargaining. It is appropriate for the government to
persuade a defendant to plead guilty through negotiation. We
agree with the defendants.
The United States Supreme Court has explained as follows: "The
plea bargaining process necessarily exerts pressure on defendants
to plead guilty and to abandon a series of fundamental rights,
but we have repeatedly held that the government may encourage a
guilty plea by offering substantial benefits in return for the
plea." United States v. Mezzanatto, 513 U.S. 196, 210 (1995)
(internal quotation marks omitted). Accordingly, plaintiff cannot
raise a constitutional claim with regard to the plea
negotiations, and we will grant judgment to the defendants on the
plaintiff's First Amendment claim.
Plaintiff's complaint asserts that Defendant Passaro defamed
him when he used the word "garbage" to describe the material plaintiff had hauled in his truck.
Passaro argues that he is subject to statutory immunity on this
claim, and even if the immunity did not apply, no evidence exists
in the record that he defamed plaintiff. After a careful review,
we are in agreement with the plaintiff.
All officials and employees of Pennsylvania acting within the
scope of their duties are protected by sovereign immunity, unless
it has been waived. 1 Pa.C.S. § 2310. It has not been waived with
respect to defamation claims. See Adams v. McAllister,
798 F. Supp. 242, 247 (M.D. Pa. 1992) aff'd 972 F.2d 1330 (3d Cir.
Accordingly, sovereign immunity applies and we need not address
the remainder of the issues raised with regard to plaintiff's
6. Qualified Immunity
Defendants also raise the defense of qualified immunity. As we
have discussed above, none of the plaintiff's claims have merit,
we need not address this issue.
For all the forgoing reasons, summary judgment will be granted
to the defendants. An appropriate order follows. ORDER
AND NOW, to wit, this 21st day of September 2005, the
defendants' motion for summary judgment (Doc. 25) is hereby
GRANTED and judgment is granted to the defendants on all of the
plaintiff's claims. The Clerk of Court is directed to close this
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