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See v. Fink

March 10, 2009


The opinion of the court was delivered by: Judge Conner


Plaintiff Ernest Eugene See ("See") brings this action pursuant to 42 U.S.C. § 1983 against defendant police officer Timothy Fink ("Fink"). See contends that Fink issued a disorderly conduct citation that deprived him of his right to access the courts and to be free from malicious prosecution. He also advances a civil conspiracy claim under state law. Fink has filed a motion for summary judgment (Doc. 30). For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn1

In September 2005, See entered the York Fair in York, Pennsylvania for the purpose of attending a concert at the fair grandstand. (Doc. 32 ¶ 5; Doc. 42 ¶ 5.) See's wife and his sister-in-law, Debbie Lukenich ("Lukenich") accompanied him to the fair along with two friends, Ed Gates ("Gates") and Bill Gohn. (Doc. 32 ¶¶ 5-6; Doc. 33, Ex. 1 at 28-29; Doc. 42 ¶¶ 5-6.)

A. Circumstances of See's Arrest

Forty-five minutes their arrival, See, Lukenich, and Gates went to the fair's beer garden to purchase an alcoholic beverage. (Doc. 32 ¶ 7; Doc. 33, Ex. 1 at 30 Doc. 42 ¶ 7.) Fair policy required all guests, regardless of age, to present photo identification to an attendant before entering the bar area. (Doc. 32 ¶ 8; Doc. 47, Ex. 7 at 16-17; Doc. 42 ¶ 8.) See and Gates and produced identification and gained admittance to the beer garden. (Doc. 32 ¶ 9; Doc. 42 ¶ 9.) When See was approximately ten paces inside the entrance, he noticed that the attendant had refused to admit Lukenich because she lacked identification. (Doc. 32 ¶¶ 9-10; Doc. 33, Ex. 1 at 36; Doc. 42 ¶¶ 9-10.) See returned to the entrance and informed the attendant that Lukenich was forty-two years of age, but the attendant remained steadfast. (Doc. 32 ¶¶ 11-12; Doc. 33, Ex. 1 at 38; Doc. 42 ¶¶ 11-12.)

See then instructed Lukenich to follow him into the beer garden despite the attendant's refusal to admit her. (Doc. 32 ¶ 13; Doc. 42 ¶ 13.) See "figured as long as [he and Gates] showed proper ID, we could purchase a beverage and she could stand there with us until we were finished out beverage." (Doc. 33, Ex. 1 at 39.) As Lukenich attempted to enter the beer garden, the attendant grasped her arm.*fn2

(Doc. 33, Ex. 1 at 39; Doc. 42, Ex. 1 ¶ 10.) See asked the attendant not to touch Lukenich, and the attendant summoned two or three fair security officers. (Doc. 32 ¶¶ 14-15; Doc. 33, Ex. 1 at 39; Doc. 42 ¶¶ 14-15.) Fair security officers are temporary sheriffs deputies commissioned to perform limited law enforcement functions. (Doc. 42, Ex. 5 at 23-24.) The officers prevented the situation from escalating and told See to "move on." (Doc. 32 ¶ 15, Doc. 33, Ex. 1 at 41, 44; Doc. 42 ¶ 15.) He and Gates then entered the beer garden. (Doc. 32 ¶ 16; Doc. 42 ¶ 16.)

Once inside, See stated to Gates in a normal, conversational tone: "[T]his is bullshit," referring to the attendants' refusal to admit Lukenich.*fn3 (Doc. 32 ¶ 17; Doc. 33, Ex. 1 at 57; Doc. 42 ¶ 17.) Three or four fair security officers, including former defendant Charles Sleeger ("Sleeger"),*fn4 approached and informed See that he would be placed under arrest unless he immediately departed the fairgrounds. (Doc. 32 ¶¶ 18-19; Doc. 42 ¶¶ 18-19.) Several officers escorted See to a concrete barrier, where the exit to the beer garden was located. (Doc. 32 ¶ 21; Doc. 42 ¶ 21.) See expressed no disgruntlement about being required to leave, nor did he use profanity toward the officers accompanying him. (Doc. 33, Ex. 1 at 56; Doc. 42, Ex. 1 ¶ 18.)

En route to the exit, See passed Lukenich and informed her that he was leaving the fairgrounds and would rendezvous with her later. (Doc. 33, Ex. 1 at 64; Doc. 42, Ex. 1 ¶ 19.) Immediately after this conversation, See heard a fair security officer shout: "Take him down." (Doc. 33, Ex. 1 at 64.) Several officers including Sleeger beset him, forced him to the ground, and handcuffed him. (Id. at 64, 66.) One of the officers placed a knee on the back of his head, forcing his face into the ground. (Doc. 32 ¶ 23; Doc. 42 ¶ 23.) Fink was not present during and did not participate in the arrest. (Doc. 32 ¶ 28; Doc. 33, Ex. 1 at 140-41; Doc. 42 ¶ 28; Doc. 42, Ex. 3 at 101.) The fair security officers transported See to a structure known as the paddock, a former stable used as a police staging area. (Doc. 32 ¶¶ 26-27; Doc. 42 ¶¶ 26-27.) The paddock currently houses no animals. (Doc. 42, Ex. 3 at 30-31; Doc. 42, Ex. 5 at 47-48.)

B. The Citation Issued by Fink

The fair security officers, who apparently lack the authority to issue criminal citations, requested that Fink, then on patrol, stop at the paddock and prepare a citation for See. (Doc. 42, Ex. 3 at 47.) When Fink arrived, he spoke with Sleeger, who recited a sequence of events that differs markedly from the one presented by See. (Doc. 32 ¶ 34; Doc. 42 ¶ 34.)

According to Sleeger, See loudly protested the beer garden's identification policy after gaining admittance. (Doc. 42, Ex. 3 at 75-76.) Sleeger allegedly stated "[t]hat [See] repeatedly was being loud" and that Sleeger requested that See sit down. (Id.) Sleeger's supervisor then instructed him to remove See from the fairgrounds. (Id.) Sleeger was purportedly escorting See from the concert area when See "stopped . . . turned, and . . . grabbed a hold" of Sleeger in an attempt to re-enter the grandstand. (Id. at 84-85.) Sleeger and the other officers immediately directed him to the ground, where they handcuffed him.*fn5 (Doc. 42, Ex. 4.) Fink prepared a summary offense citation for disorderly conduct*fn6 based upon Sleeger's recount. (Doc. 32 ¶ 34; Doc. 42 ¶ 34.) He left the citation with an unidentified officer, who later served it upon See. (Doc. 32 ¶¶ 38-39; Doc. 42 ¶¶ 38-39.) Fink did not speak with See before preparing the citation. (Doc. 42, Ex. 3 at 85.)

See was convicted of disorderly conduct before a magisterial district judge and pursued a summary appeal to the York County Court of Common Pleas, where the charges were withdrawn. (Doc. 32 ¶ 44; Doc. 42 ¶ 44.) See contends that Fink testified untruthfully during the proceedings before the magisterial district judge, but he has no evidence to support this claim and characterized the ...

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