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Gomez v. Markley

July 18, 2008


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiff John Paul Gomez (hereinafter "Gomez") filed this civil action pro se against Defendants Officer James Markley (hereinafter "Markley") and the Midway Borough Police Department (hereinafter "Midway"), alleging a violation of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983, as well as state law claims for defamation, invasion of privacy (false light), and intentional infliction of emotional distress.Currently pending before the Court are cross motions for summary judgment: Defendants' Motion to Dismiss in the form of a Motion for Summary Judgment [22] and Plaintiff's Motion for Summary Judgment[42]. Based on the following, Defendants' Motion is GRANTED and Plaintiff's Motion is DENIED.


Although the motions and briefing along with accompanying affidavits are fact intensive, the Court distills the following key facts from the record before it. On March 26, 2007, Markley, then a Midway Borough Police Officer, was patrolling Midway Borough in a Borough police car when he came upon Gomez's car which bore no inspection stickers. (Docket No. 23 at ¶ 1; Docket No. 27 at ¶ 1). Markley activated his vehicle's lights and sirens to initiate a traffic stop. (Docket No. 23 at ¶ 2; Docket No. 27 at ¶ 2). Gomez cooperated and pulled his car to the side of the road. (Docket No. 23 at ¶ 3; Docket No. 27 at ¶ 3).

Markley asserts that upon approaching Gomez's car, he observed Gomez acting strangely and exhibiting indications of extreme nervousness. (Docket No. 23 at ¶ 4). Gomez states that Markley approached his car, stated that his car was not inspected, and requested his driver's license, registration and insurance. Id. Gomez maintains that he provided the requested information and, therefore, in his opinion, he had no reason to act strange or nervous. Id. After Markley approached Gomez's car, he also states he observed that Gomez's eyes were bloodshot. (Docket No. 23 at ¶ 5).

Markley inquired where Gomez was from; to which Gomez responded that he was from South Africa. (Docket No. 23 at ¶ 6). Markley then asked Gomez where he lived, and Gomez answered that he lived in Midway. Id. at ¶ 7. Markley next asked Gomez to provide his driver's license. Id. at ¶ 8. Gomez produced his driver's license which identified Philadelphia, Pennsylvania, as his place of residence. Id. at ¶ 9. At that time, Markley reviewed the issue date on the license and inquired how long Gomez had lived in Midway. Id. at ¶ 10. Gomez responded that he became a resident of Midway after his license was issued; hence, the license reflected his legal residence at the time it was issued, namely Philadelphia, Pennsylvania. Id. at ¶ 10. In light of the difference in legal residences between Gomez's statement and his license, as well as his nervous behavior, Markley inquired as to whether Gomez's license was suspended or if there was something illegal in his vehicle. Id. at ¶ 11. Gomez responded no to both inquiries. Id. Markley further questioned Gomez as to his nervousness, to which Gomez responded that there was no reason for him to be nervous. Id. at ¶ 12.

Gomez disputes these facts. He contends that when Markley asked him where he was from, he stated Gambia, West Africa. (Docket No. 27 at ¶ 6). Contrary to what Markley alleges, Gomez maintains that his driver's license identified Philadelphia as his prior residence, and that he provided Markley with a paper copy of his driver's license, which reflected a change of address to Moon Township, Pa. Id. at ¶ 9.

Markley next states that he walked back to his police car and ran Gomez's license to determine whether he had any outstanding warrants, as well as to establish the status of his driving privileges. (Docket No. 23 at ¶ 13; Docket No. 27 at ¶ 13). Upon running Gomez's driver's license, Markley was informed that Gomez's driving privileges were suspended*fn1 (which Gomez disputes*fn2 ) (Docket No. 27 at ¶ 14), and that the vehicle he was driving had an expired registration. Id. After securing this information, Markley maintains that he walked back to Gomez's car and asked him to step out. Id. at ¶ 15. Gomez adds that Markley asked him to exit his car in an abrupt manner and to place his hands on the top of it. (Docket No. 27 at ¶ 11; Docket No. 27-2 at ¶ 27). Gomez also states that Markley asked him if he had anything on him or in his vehicle that he might voluntarily want to disclose before he commenced a search of his car. (Docket No. 27 at ¶ 12). Markley contends that Gomez complied with his requests. Accordingly, he began to pat Gomez down for weapons. Markley found no weapons. Id. at ¶ 16. After the search, Markley asked Gomez to get back in his car, and he proceeded back to his police patrol car. (Docket No. 27-2 at ¶ 35).

Gomez also avers that Markley then ordered him to stand about three (3) feet away from his car, and Markley walked around the car to the front passenger's side door, opened the door and thoroughly searched his glove compartment and removed two bottles of Visine. (Docket No. 27 at ¶ 25; Docket No. 27-2 at ¶¶ 64, 65). Markley inserted the Visine bottles in a film plastic cover from his pack of cigarettes and placed them on top of the car continuing to search the back seat behind the passenger seat. (Docket No. 27 at ¶ 25; Docket No. 27-2 at ¶ 65).*fn3

Thereafter, Gomez asserts that Markley approached his car, and ordered Gomez to step out a second time. (Docket No. 27 at ¶ 15). At this point, Gomez claims Markley handed him a written consent to search form and asked him to sign the form if he disputed having illegal drugs in his car. Id.

Markley alleges that as Gomez exited his car, he observed a marijuana seed on the driver's seat. (Docket No. 23at ¶ 17). Hence, Markley escorted Gomez to the rear of his car and asked him if he had marijuana in it. Id. According to Markley, Gomez denied that he had any drugs in his car. Id. at ¶ 18. Markley responded that he had observed a marijuana seed in plain view on the driver's seat of Gomez's car. Id. at ¶ 19. Gomez states that Markley's statements regarding the marijuana are entirely false. (Docket No. 27 at ¶ 19). According to Gomez, Markley found no marijuana in his car, nor did he present any evidence to substantiate such a claim. (Docket No. 27 at ¶ 17).

Gomez adds that Markley claimed to have found illegal drugs in his car but would not show them to him, and further, that Markley at no point used the words "marijuana seed." Id.*fn4

During the course of the above described events, Markley asserts that Gomez exhibited continued nervous behavior by placing his hands in his pockets, fidgeting and playing with his cell phone. (Docket No. 23at ¶ 21). In response to Gomez's behavior, Markley states that he repeatedly instructed Gomez to remove his hands from his pockets. Id. at ¶ 22. Gomez explains that he acted in a nervous manner because he was unsure of what Markley was planning to do and was reaching for his cell phone in an attempt to call a friend from the neighborhood to come to the scene as a witness. (Docket No 27 at ¶ 22; Docket No. 27-2 at ¶ 47).

Markley contends that he called for backup from the McDonald Police Department (hereinafter "McDonald") because he was concerned for his safety based on (1) the fact that Gomez claimed that he was from three different places; (2) there were no inspection stickers on his vehicle; (3) his driver's license was suspended; (4) Markley observed a marijuana seed on the driver's seat of his vehicle; and (5) he exhibited signs of extreme nervousness, such as repeatedly placing his hands in his pockets. (Docket No. 23 at ¶ 27). A McDonald officer arrived a short time later. Id. at ¶ 28. Gomez identifies a second McDonald officer as Harold Purdy. Purdy watched Markley search Gomez's car. (Docket No. 27 at ¶ 28; Docket No. 27-2 at ¶¶ 75 and 78).

Markley advised Gomez that his car needed to be towed if he was unable to summon another driver because it could not be left in its present condition. According to Gomez, Markley stated that the car was being impounded because he found drugs in his car and because he was not allowed to drive the car anywhere. (Docket No. 27 at ¶ 30; Docket No. 27-2 at ¶ 84). Markley further advised Gomez that if he allowed him to leave his car on the street, and if the car was damaged or stolen, Markley would be held responsible. (Docket No. 23 at ¶ 29). Markley asserts that Gomez was unable to find anyone to retrieve his car. Id. at ¶ 30.

Given that no one was available to retrieve Gomez's car, Markley informed Gomez that his car was going to be towed. (Docket No. ¶ 23 at 31; Docket No 27 at ¶ 31). Because Gomez's car was going to be towed, Markley did an inventory of the vehicle pursuant to Midway's procedures.*fn5

(Docket No. 23 at ¶ 32). In the course of Markley's inventory search of Gomez's car, he claims he observed three bottles of Visine on the console. Id. at ¶ 35. In light of Markley's perception of Gomez as nervous and the marijuana seed on the driver's seat, the presence of Visine indicated marijuana usage to him. Id. Markley maintains that he found a trace amount of what he believed to be marijuana in the center console. Id. at ¶ 33. Gomez disputes Markley's version of the facts, arguing that Markley found two bottles of Visine which he identified as illegal drugs. (Docket No. 27-2 at ¶¶ 65,66). Gomez also asserts that the marijuana seed and the trace amount of marijuana in the console did not exist. He further argues that Markley searched his car without a warrant either hoping to find drugs or intending to plant them in his car. (Docket No. 27 at ¶ 33).

Gomez then argues that Defendant's Exhibit "B" is not Midway Borough's Policy and Procedure, rather, it belongs to the McDonald Police Department, whom Markley worked for while employed with Midway. (Docket No. 27 at ¶ 32). In support, Gomez proffers an Affidavit of Patrick Cooper, who is the constable for the Midway Borough Police. (Docket No. 28-2 at ¶ 2).

Cooper states that on June 3, 1992, he was the Chief of Police for the Borough of Midway and was never made aware by the Mayor of Midway Borough or Midway Borough Council of an enacted Motor Vehicle Towing and Inventory (Policy & Procedure). Cooper claims that such a document did not exist based on his personal knowledge as Chief of Police. Id. at ¶ 4. Also, Cooper asserts that during his tenure as Chief of Police for the Borough of Midway, he had never seen or been made aware by the Mayor of Midway Borough or Midway Borough Council of an enacted "Vehicle Impound Record." Id. at ¶ 5.

After the vehicle inventory was completed, Markley arranged for it to be towed to Wally's Towing.*fn6 (Docket No. 23 at ¶ 34; Docket No. 27 at ¶ 34). Markley, in front of Purdy, then provided Gomez with another form, asking Gomez to sign it, stating that it was an inventory form to account for all the items present in his vehicle before it was towed. (Docket No. 27 at ¶ 30; Docket No. 27-2 at ¶ 85). Gomez signed the form. (Docket No. 27-2 at ¶ 86).

Gomez states that after the two hour search, Markley informed him that he would receive citations on all the counts he was being charged with by mail. (Docket No. 27 at ¶ 30; Docket No. 27-2 at ¶ 82). Subsequently, Markley issued the following citations to Gomez: 75 Pa.C.S.A. § 1543(a) (driving while license is suspended or revoked); 75 Pa.C.S.A § 1301 (driving an unregistered vehicle); and 75 Pa.C.S.A. § 4703 (operating vehicle without a valid inspection).*fn7

(Docket No. 23 at ¶ 35; Docket No. 27 at ¶ 35). Gomez was found guilty by the district justice of 75 Pa.C.S.A. § 1301 (driving an unregistered vehicle) and 75 Pa.C.S.A. § 4703 (operating vehicle without a valid inspection) (Docket No. 23 at ¶ 36; Docket No. 27 at ¶ 36). Gomez highlights the fact that he was also found not guilty of driving with a suspended driver's license.*fn8 (Docket No. 27 at ¶ 36).


On July 5, 2007, Gomez commenced this action, (Docket No. 5), to which Markley and Midway filed a Motion to Dismiss in the form of a Motion for Summary Judgment and Brief in Support. (Docket No. 22 and 24). Thereafter, Gomez filed a Brief in Opposition to Defendants' Motion. (Docket No. 28). On January 18, 2007, the Court heard oral argument and testimony as to Defendants' Motion. (Docket No. 31). During said hearing, Gomez made an oral motion requesting leave to file a cross motion for summary judgment and the Court granted said motion. (Docket No. 31 and 32). Subsequently, on January 22, 2008, Gomez filed his Motion for Summary Judgment (Docket No. 33). In response, on March 7, 2008, Markley filed a Brief in Opposition. (Docket No. 36). By leave of Court, Gomez filed an Amended Cross Motion for Summary Judgment and Brief in Support on March 18, 2008. (Docket No. 42 and 43). On March 31, 2008, Markley filed a Response to said Amended Motion and a Brief in Opposition. (Docket No. 45 and 46). On April 21, 2008, this matter was fully briefed once Gomez filed his Sur-Reply Brief Opposing Defendants' Motion and Supporting Plaintiff's Motion. (Docket No. 50).


Summary judgment may only be granted "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who 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 of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

In evaluating the evidence, the Court must interpret facts in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Initially, the burden is on the moving party to demonstrate that the evidence in the record creates no genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. "The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment." Turner v. Leavitt, Civil Action No. 05-942, 2008 WL 828033, at *4 (W.D. Pa. March 25, 2008) (citing Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing10 WRIGHT AND MILLER, FEDERAL PRACTICE § 2721at 40 (2d ed.1983))); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert. denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").

While 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 admissible evidence in the record would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322-323. 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. The nonmoving party "cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

Further, Local Rule of Court 56.1.E describes the consequences of either party's failure to follow the rules set forth pertaining to submission of concise statements of material facts and responsive concise statements of material facts for summary judgment motions stating that "facts claimed to be undisputed 'will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." W.D. Pa. L. R. 56.1(E); Hickenbottom v. Nassan, 2007 U.S. Dist. LEXIS 24336 (W.D. Pa. 2007).

Finally, the Court notes that Gomez is proceeding in this action pro se. Accordingly, during the summary judgment stage, courts have recognized their obligation to construe pro se submissions liberally. Hodson v. Alpine Manor, Inc. 512 F. Supp.2d 373 (W.D. Pa. 2007). In doing so, "the court reads the pro se party's papers liberally and interprets them to raise the strongest arguments suggested therein." Hodson, 512 F. Supp at 384.


Presently before the Court are cross- motions for summary judgment.As the same issues are argued in both motions, the Court will ...

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