United States District Court, M.D. Pennsylvania
October 26, 2005.
DAVID BRUCE DARBY, Plaintiff,
MICHAEL A. TAYLOR, Defendant.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Plaintiff, David Bruce Darby, an inmate at the State
Correctional Institution in Graterford, Pennsylvania, commenced
this action pro se with a civil rights complaint filed pursuant
to the provisions of 42 U.S.C. § 1983. Named as Defendants are
Chambersburg Police Officer Michael A. Taylor, and Plaintiff's
Probation Officer Joseph McLaughlin. Plaintiff alleges that
Defendants illegally arrested and detained him on October 26,
2003, in violation of his Fourth Amendment rights. By order dated
March 25, 2005 (Doc. 40), McLaughlin was dismissed as a Defendant
from this case.
This matter comes before the Court on Taylor's motion for
summary judgment (Doc. 30) and Plaintiff's fifth motion for
appointment of counsel (Doc. 48). The motions are ripe for
disposition. For the following reasons, Defendant's motion for summary judgment will be granted and Plaintiff's motion for
appointment of counsel will be denied.
The facts are undisputed.*fn1 Defendant, Officer Michael
Taylor, is employed as a police officer in the Chambersburg,
Pennsylvania, Police Department. (Doc. 34 ¶ 3.) On October 23,
2003, at 1:00 a.m., Defendant and Patrolman Jakubic were in the
area of the parking lot of Dilly's Restaurant and Bar. (Id. ¶
4.) Defendant and Patrolman Jakubic had received an earlier tip
that Plaintiff was in the bar, in violation of the terms of his
probation (restriction on consumption of alcohol). (Id. ¶¶
As Defendant and Jakubic entered Dilly's parking lot, they
received a call from County Dispatch, informing them that Adult
Probation had made a check and could not find anything showing
that Plaintiff was not permitted to drink alcohol. (Id. ¶ 7.)
While in the parking lot area, Defendant and Jakubic observed
Plaintiff exiting the bar with another individual. (Id. ¶ 8.)
Defendant recognized the other individual as an off-duty police
officer. (Id. ¶ 9.) The officer gave an indication to Defendant
and Jakubic that he needed their assistance as he walked across the parking
lot with Plaintiff. (Id. ¶ 10.)
Defendant and Jakubic exited their patrol car and approached
Plaintiff. Defendant spoke to Plaintiff about his probation, and
inquired whether Plaintiff was prohibited from drinking alcohol
under the terms of his probation, as Jakubic spoke to the
off-duty officer. (Id. ¶ 11.) During the conversation,
Plaintiff kept his hands in the front pockets of his sweat pants.
(Id. ¶ 12.) Based upon past experience, Defendant and Jakubic
knew that Plaintiff was occasionally aggressive towards police
officers. (Id. ¶ 13.) Thus, a pat-down of Plaintiff was
conducted to check for weapons. (Id. ¶ 14.)
Defendant noticed that the cargo pocket on the left leg of
Plaintiff's sweat pants was open and bagging out. (Id. ¶ 15.)
Sticking out of the top of the pocket in plain view was a plastic
bag. Defendant observed a green leafy substance behind the bag.
(Id. ¶ 16.) Defendant asked Plaintiff what was in the bag.
Plaintiff reached into his pocket and shook the bag slightly and
removed an empty bag. In plain view, in the same pocket,
Defendant observed several smaller bags containing a green leafy
substance which, in Defendants experience as a police officer,
appeared to be marijuana packaged for sale. (Id. ¶ 18.) Based
upon Defendant's observations, Plaintiff was placed under arrest
and he was searched incidental to that arrest. (Id. ¶ 19.) During the search, twenty-two (22) plastic bags,
individually wrapped, were recovered from Plaintiff's pockets.
(Id. ¶ 20.) The contents of the bag field tested positive for
marijuana. (Id. ¶ 21.)
After Plaintiff was taken into custody, the off-duty officer
informed Defendant that Plaintiff had approached him in the bar
and offered to sell him marijuana. (Id. ¶ 22.) Plaintiff walked
out with the officer, claiming that he wanted to show the officer
what he had to sell. (Id. ¶ 23.)
Subsequently, Defendant prepared a criminal complaint and an
affidavit of probable cause, charging Plaintiff with the offense
of possession with intent to deliver a controlled substance.
(Id. ¶¶ 26, 28.) The criminal complaint alleged that Plaintiff
possessed twenty-two (22) packed bags of a green leafy substance
which field tested positive for the presence of THC/marijuana,
and Plaintiff attempted to sell this substance to another person.
(Id. ¶ 27.) The criminal complaint, approved by the District
Attorney and a District Justice, was served on Plaintiff at the
Franklin County Prison. (Id. ¶¶ 29-30.) Plaintiff filed a
counseled motion to suppress, which was denied by the Court.
(Id. ¶¶ 31-32.) Subsequently, Plaintiff pled nolle contendre
to the marijuana charge, and he was sentenced on December 22,
2004. III. Discussion
A. Appointment of Counsel
Currently pending is Plaintiff's fifth motion for appointment
of counsel. By Order of this Court dated January 21, 2004 (Doc.
11) Plaintiff's first motion for appointment of counsel (Doc. 5)
was denied; by Order of this Court dated July 27, 2004 (Doc. 28)
Plaintiff's second and third motions for appointment of counsel
were denied; and by Order of this Court dated August 18, 2005
(Doc. 46), Plaintiff's fourth motion for appointment of counsel
was denied. Plaintiff's current motion adds nothing to the
Court's analysis of this request. Consequently, for the reasons
set forth in the Court's prior orders, Plaintiff's fifth motion
for appointment of counsel will be denied.
B. Summary Judgment Standard
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c); accord
Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A
factual dispute is "material" if it might affect the outcome of
the suit under the applicable law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine"
only if there is a sufficient evidentiary basis which would allow a reasonable
fact-finder to return a verdict for the non-moving party. Id.
at 249. The court must resolve all doubts as to the existence of
a genuine issue of material fact in favor of the non-moving
party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985); see
also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609
(M.D. Pa. 1992).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the
non-moving party may not simply sit back and rest on the
allegations in its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Instead, he must "go beyond the pleadings
and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, and designate specific
facts showing that there is a genuine issue for trial." Id.
(internal quotations omitted); see also Saldana,
260 F.3d at 232 (citations omitted). Summary judgment should be granted where
a party "fails to make a showing sufficient to establish the
existence of an element essential to that party's case and on
which that party will bear the burden at trial." Celotex,
477 U.S. at 322-23. "`Such affirmative evidence regardless of
whether it is direct or circumstantial must amount to more than
a scintilla, but may amount to less (in the evaluation of the
court) than a preponderance.'" Saldana, 260 F.3d at 232
(quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)). C. Probable Cause
As it relates to Defendant Taylor, the Complaint alleges that
he violated Plaintiff's "Fourth Amendment rights by failing to
provide prompt judicial determinations of probable cause to
persons arrested without a warr[a]nt. . . ." (Doc. 1 at 3.) In
response, Defendant Taylor asserts that there was probable cause
to arrest Plaintiff.
When a warrantless search is made pursuant to an arrest, "[t]he
constitutional validity of the search . . . must depend upon the
constitutional validity of the . . . arrest." Beck v. Ohio,
379 U.S. 89, 91 (1964); see also U.S. v. Kithcart, 134 F. 2d 529,
531 (3d Cir. 1998). The Fourth Amendment of the United States
Constitution proscribes searches and seizures, including arrest,
without probable cause. Berg v. County of Allegheny,
219 F.3d 261, 269 (3d Cir. 2000).
Whether that [warrantless] arrest was
constitutionally valid depends in turn upon whether,
at the moment the arrest was made, the officers had
probable cause to make it whether at that moment
the facts and circumstances within their knowledge
and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man
in believing that the [suspect] had committed or was
committing an offense.
Beck, 379 U.S. at 91. "[P]robable cause to arrest exists when
the facts and circumstances within the arresting officer's
knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been
or is being committed by the person to be arrested." Estate of
Smith v. Marasco, 318 F.3d 497
, 514 (3d Cir. 2003). The court is
permitted to "conclude `that probable cause exists as a matter of
law if the evidence, viewed most favorable to Plaintiff,
reasonably would not support a contrary factual finding,' and may
enter summary judgment accordingly." Merkle v. Upper Dublin Sch.
Dist., 211 F.3d 782
, 792 (3d Cir. 2000).
Here, the record supports a conclusion that Defendant had
probable cause to arrest Plaintiff. The undisputed facts confirm
that a green leafy substance was in plain sight in Plaintiff's
pocket, and that after removal of the top bag from Plaintiff's
pocket small bags of green leafy substance were in plain sight.
Further, Defendant knew from experience that the green leafy
substance appeared to be marijuana. Although Plaintiff was
arrested by Defendant, he was detained by his probation officer
based upon his admission he had been consuming alcohol, his
admission that he was in possession of marijuana, and based upon
results of a consensual urine test showing the presence of
marijuana in Plaintiff's system. All of these "facts and
circumstances . . . are sufficient in themselves to warrant a
reasonable person to believe that an offense ha[d] been or [was]
being committed by the person to be arrested," Estate of Smith,
318 F.3d at 514, thereby establishing probable cause. IV. Conclusion
Since Plaintiff has not demonstrated the presence of requisite
factors for appointment of counsel, his fifth motion for
appointment of counsel will be denied. Moreover, since the facts
and circumstances of Plaintiff's arrest established probable
cause, Defendant's motion for summary judgment will be granted.
An appropriate order will issue. ORDER
AND NOW, THEREFORE, in accordance with the foregoing
memorandum, IT IS HEREBY ORDERED THAT:
1) Plaintiff's fifth motion for appointment of counsel (Doc.
48) is DENIED.
2) Defendant's motion for summary judgment (Doc. 30) is
3) The Clerk of Court is directed to enter judgment in favor of
Defendants and against Plaintiff, and the Clerk of Court shall
mark this case closed.
4) Any appeal from this Order shall be deemed frivolous,
without probable cause, and not taken in good faith.
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