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Johnson v. Wild Acres Lakes Property & Homeowners Association

August 6, 2009


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is the Motion for Summary Judgment of Defendants Kevin Varcoe ("Varcoe") and Peter Gutowski ("Gutowski").*fn1 (Doc. 54.) Plaintiff raises claims against these Defendants pursuant to 42 U.S.C. § 1983 for violation of his constitutional rights. Defendants move for summary judgment as to Count I of Plaintiff's amended complaint, against Defendant Varcoe, and Count II of the amended complaint, against Defendant Gutowski. For the reasons stated below, the Court will grant in part and deny in part Defendants' motion. The Court will deny summary judgment as to Count I, but grant the motion as to Count II.

This Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction").


I. Factual Background

The facts most relevant to the present motion and taken in the light most favorable to Plaintiff are as follows. Plaintiff and his wife live in a residential community called Wild Acres. On February 27, 2007, Plaintiff's neighbor, Tom Skala, went to Plaintiff's house to use his laundry machine. (R. Johnson Dep. 31-32, Aug. 28, 2008.) Also on that date, Defendant Varcoe, a Pennsylvania State Police ("PSP") officer, was advised by the PSP dispatcher that Skala had allegedly violated a Protection from Abuse Order, threatened his wife, and threatened to shoot any police officer who tried to arrest him. (Defs.' Statement of Facts ¶ 8, Doc. 55 (hereinafter "SOF");*fn2 Varcoe Dep. 10-11, Aug. 19, 2008.) Varcoe was dispatched to Wild Acres, along with Trooper Jennifer Mlodzienski, because Skala's car was seen at a residence in the development. (SOF ¶ 9.) When they arrived, Wild Acres security personnel told Varcoe that Skala was inside the residence and had not left. (Id. ¶ 11.) The PSP officers went to the door of Plaintiff's home, accompanied by Russell Eilber,*fn3 a Wild Acres security guard, while another security guard went to the back of the house. (Id. ¶¶ 13, 18.) The officers did not obtain a description of Skala before approaching Plaintiff's house. (Varcoe Dep. 13.)

When Varcoe knocked, Plaintiff, who was sitting alone at a table, heard and answered the door. (SOF ¶¶ 14, 19.) At the time, he had a licensed, loaded handgun located at the center of his back in a back brace. Plaintiff, a retired police officer, had been carrying a gun every day for thirty-five years. When he answered the door, Varcoe was standing directly across the threshold from him. Mlodzienski was behind Varcoe and Eilber was behind her.

(R. Johnson Dep. 66-68.) According to Plaintiff, Varcoe asked why Skala's car was parked in his driveway. Plaintiff hesitated in answering. Varcoe then asked who Plaintiff was. Plaintiff answered, "I'm Bob Johnson. I live here." Varcoe asked for identification. Before retrieving his wallet, Plaintiff informed Varcoe that he was armed and told him to take the gun. (Id. at 72-76.) Varcoe took Plaintiff's gun, then grabbed his arm, yanked him from the threshold onto the front landing of the house, pushed him down to his knees, and handcuffed him (Id. at 77-82, 276.)

Plaintiff testified at deposition that he began screaming in pain and told Varcoe he had a bad back, but Varcoe continued to hold and push down on the handcuffs. While continuing to scream in pain, Plaintiff asked why Varcoe was doing this and the officer answered he was investigating a crime. (Id. at 83-84.) Plaintiff estimated that at least ten minutes went by before his wife, who had been drying her hair in an upstairs bedroom, came downstairs, informed the officers Plaintiff had a bad back and had experienced four strokes, asked that he be let up, and provided them his identification. (Id. at 64, 86-87.) During that time, the handcuffs were continuously held and pushed down. (Id. at 285, 287.) Plaintiff was uncuffed and allowed to stand within several minutes after his wife provided his identification. (Id. at 88.) The officers then asked whether Skala was inside the house. (Id. at 87-88.) Plaintiff went back inside the house and encouraged Skala to present himself to the officers. Skala did so and was taken into custody. (Id. at 90-92.)

Two days later, on March 1, 2007, while driving his vehicle, Plaintiff observed a Wild Acres security truck pull into the drive-in window of a local bank. Plaintiff followed and pulled his vehicle nearby the Wild Acres truck. He called out to the Wild Acres security guards in the truck to come over and talk to him. He wanted to question them regarding the February 27 incident at his home. The driver attempted to back the truck up and Plaintiff similarly backed his vehicle. Plaintiff then observed one of the security guards using a walkie-talkie and a cell phone. Suspecting he might have called the police, Plaintiff drove to the Wild Acres security office. (Id. at 121.) During this time, Plaintiff's loaded handgun was located in the glove box of his vehicle. (Id. at 120, 126.)

Outside the Wild Acres office, Plaintiff spoke to manager Harold Davis,*fn4 who relayed the guards' claim that Plaintiff had drawn a gun on them at the bank. He asked if Plaintiff had a gun. Plaintiff answered that there was a gun in the glove box of his vehicle. Davis said PSP officers were on their way and asked if Plaintiff would wait. Plaintiff agreed. (Id. at 128.) At some point before the PSP officers arrived, Plaintiff's legs collapsed, he fell to the ground, and was unable to rise. (Id. at 131-132.) An ambulance was called on his behalf and he was placed on a plastic sheet and covered by a blanket. (SOF ¶¶ 102, 103.) Plaintiff asserts he was suffering from a stroke. (R. Johnson Dep. 545, 549.)

When two PSP officers arrived on the scene, Plaintiff was still on the ground. The officers were informed that an ambulance was on its way. (SOF ¶ 114.) Within a few minutes of arriving, one of the officers, Defendant Gutowski, approached Plaintiff in full uniform. (SOF ¶ 122; Gutowski Dep. 20, July 28, 2008.) He identified himself and informed Plaintiff that an ambulance was coming. (SOF ¶ 123; Gutowski Dep. 20.) He asked Plaintiff for permission to search his vehicle and Plaintiff consented. (R. Johnson Dep. 142.) He told Gutowski that a gun was located in the glove box. (SOF ¶ 124.) Plaintiff admits that he did not inform the officer that he believed he was suffering from a stroke. He was coherent and lucid while answering Gutowski's request, though he recalls "moaning and groaning the whole time [the officers] were there." (SOF ¶¶ 117, 128; R. Johnson Dep. 142, 144-45.) Gutowski searched in the glove box of Plaintiff's unlocked vehicle, located the gun, replaced it in the glove box, and locked the vehicle. (SOF ¶ 131.) Shortly thereafter, an ambulance arrived to take Plaintiff to a hospital. (SOF ¶ 134.)

II. Procedural Background

On July 30, 2007, Plaintiff filed a complaint raising a number federal and state law claims against both employees of Wild Acres and PSP officers based on the February 27 and March 1 incidents. (Doc. 1.) With leave of the Court, he filed an amended complaint on March 14, 2008. After the close of discovery, Plaintiff voluntarily dismissed several defendants and claims, including several claims against Gutowski. (Doc. 52.) Of the remaining claims, those relevant to the present motion are Counts I and II of the amended complaint. Count I raises a claim pursuant to § 1983 against Varcoe, alleging violation of the Fourth and Fourteenth Amendments to the U.S. Constitution based on his involvement in the February 27, 2007 incident at Plaintiff's home. Count II raises a claim pursuant to § 1983 against Gutowski, alleging violation of the Fourth and Fourteenth Amendments based on his search of Plaintiff's vehicle on March 1, 2007. Varcoe and Gutowski filed the present motion for summary judgment on December 2, 2008. (Doc. 54.) After an extended deadline approved by the Court, Plaintiff filed a brief in opposition to the motion on March 23, 2009.

(Doc. 73.) After receiving an extended deadline from the Court, Defendants filed a reply brief on April 28, 2009. (Doc. 87.) The motion is fully briefed and ripe for disposition.


Summary judgment is appropriate 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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D ยง 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has ...

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