The opinion of the court was delivered by: Christopher C. Conner United States District Judge
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by plaintiff Darryl Mills ("Mills") against the City of Harrisburg and members of its police force. Mills advances numerous civil rights claims associated with his 2004 arrest and prosecution for patronizing a prostitute. Three defendants have filed a motion for summary judgment (Doc. 19) on Mills's claims. For the reasons that follow, the motion will be granted in part and denied in part.
I. Statement of Facts*fn1
During the early evening of April 30, 2004, Mills and a friend, Phillip Brooks ("Brooks"), visited two bars in Harrisburg, Pennsylvania to play pool. (Doc. 20 ¶ 1; Doc. 24, Ex. A at 38; Doc. 28-2 ¶ 1.) Mills and Brooks each had several drinks during the evening.*fn2 (Doc. 24, Ex. A at 41; Doc. 24, Ex. B at 38.) They left the second bar at approximately 10:00 p.m. (Doc. 20 ¶ 2; Doc. 24, Ex. A at 38-39; Doc. 28-2 ¶ 2.)
Defendant police officer Annemarie Bair ("Bair") was positioned on a sidewalk near the bar as an undercover prostitute. (Doc. 20 ¶ 3; Doc. 24, Ex. C at 8; Doc. 24, Ex. F; Doc. 28-2 ¶ 3.) She wore a hidden microphone that transmitted her conversations to a receiver operated by defendant police Investigator Stephen Blasko ("Blasko"), positioned in a nearby surveillance vehicle. (Doc. 24, Ex. G at 9.) From his position, Blasko could see Bair as she tarried on the sidewalk. (Doc. 24, Ex. G at 7, 9.)
Mills and Brooks walked passed Bair when they left the bar. (Doc. 20 ¶ 10; Doc. 28-2 ¶ 10.) They continued down the sidewalk, and Bair called to them when they were approximately twenty yards beyond her position. (Doc. 24, Ex. A at 62; Doc. 24, Ex. B at 50.) They returned and spoke with her for approximately seven minutes.*fn3 Blasko monitored the conversation but could not determine which statements were attributable to Mills and which were uttered by Brooks. (Doc. 24, Ex. G at 9.)
At the beginning of the conversation, Bair stated that she was attempting to "mak[e] some money," to which Mills responded, "how much you trying to work?" (Doc. 45-2 at 1.) Soon thereafter, Bair asked how much money Mills and Brooks had, and Mills replied that he had seventeen dollars "to go and get me a drink and a beer after I leave." (Id. at 3.) Bair then offered to perform oral sex on Mills for fifteen dollars. (Id.) Neither Mills nor Brooks had requested sexual services prior to Bair's offer. The conversation continued for nearly six minutes after the offer, during which the Mills and Brooks considered whether Bair was a police officer and Mills admired her "nice little fat ass." (See, e.g., id. at 3, 5-7.) Brooks informed Bair that he had watched her during the evening from within the bar. (Id. at 4-8.; Doc. 20 ¶¶ 11-12; Doc. 28-2 ¶¶ 11-12.)
Brooks then represented that he and Mills were also working as prostitutes and offered to perform oral sex upon Bair:
BROOKS: Actually[,] we're working, too.
MILLS: Don't we look good?
BROOKS: Come on. 15 dollars for a headjob[.] I'm gonna do you. Man, we're going to pay you. I'm just saying, you get the thrill and you get paid.
BROOKS: Hell, yeah. Straight up.
BAIR: You give me 15 bucks and you'll give me head?
BAIR: Okay. Well, let's go. Where's your car.