The opinion of the court was delivered by: Judge Vanaskie
Plaintiff, Linda Salerno, filed this action against Exeter Borough Police Sergeant Leonard Galli, Exeter Borough Police Chief John McNeill, and Exeter Borough, alleging that Sergeant Galli violated her constitutional rights when he entered her home without permission in the early morning hours of November 18, 2006. Plaintiff's complaint included three causes of action pursuant to 42 U.S.C. § 1983, a state-law intentional infliction of emotional distress claim, and a trespass claim. The parties have filed motions for partial summary judgment. Plaintiff's intentional infliction of emotional distress claim will be dismissed as she admits the claim is not cognizable. Furthermore, as there is an explicit constitutional text governing Plaintiff's Fourteenth Amendment due process claims, the Fourteenth Amendment claims in Counts I and II will be dismissed. Because there are disputes as to material facts, summary judgment as to the remaining claims will be denied.
On November 18, 2006, shortly after midnight, Officer Michael Fuller of the Exeter Borough Police Department responded to a call about a possible sexual assault. Following several interviews, Office Fuller determined that a sex crime had been committed against a minor. (Plaintiff's Statement of Undisputed Material Facts, ("PSUMF"), Dkt. 28, at ¶ 1.)*fn1 He contacted his superior, Sergeant Galli, who interviewed the victim and her family at the Exeter Borough police station. (Id. at ¶ 2.) "The family gave statements to the effect that Angelo Salerno, Jr., the adult son of the plaintiff Linda Salerno, had committed a crime." (Id. at ¶ 2.) "Angelo Jr. was registered as a sexually violent predator . . . stemming from a prior conviction on May 31, 2002." (Defendants' Statement of Undisputed Material Fact ("DSUMF"), Dkt. 19, at ¶ 4.)
Officer Fuller and Sergeant Galli began to prepare "paperwork to obtain a warrant for the arrest of Angelo Salerno, Jr." (PSUMF, Dkt. 28, at ¶ 3.) Some time after 2:00 a.m., the officers left the police station to find and question Angelo Salerno, Jr. (Id. at ¶ 4; DSUMF, Dkt. 19, at ¶ 6.) The officers did not have a search or arrest warrant. (PSUMF, Dkt. 28, at ¶ 4.) The officers went to the Salerno residence, where Angelo Salerno, Jr. lived with his parents, and knocked on the front door, but no one answered. (Id.) The officers left and returned to the Exeter Borough police station. (Id.)
Upon return to the Exeter Borough police station, Sergeant Galli contacted the district attorney's office and Magisterial District Judge Carmody. (Id. at ¶ 5.) Officer Fuller indicated that Judge Carmody would not issue a search warrant for the Salerno residence, but that he would come out in the morning to sign an arrest warrant. (Fuller Dep., Dkt. 28-2, at 7-8.) At approximately 3:45 a.m., still without a search or arrest warrant, Sergeant Galli and Officer Fuller returned to the Salerno residence. (PSUMF, Dkt. 28, at ¶ 8.) Because no one had answered the front door during the earlier visit, they tried the back door. (Id. at ¶ 8.)
The back of the Salerno home has an enclosed porch. In order to enter onto the porch, one must open a screen door and a heavier door. (Id. at ¶ 9; DSUMF, Dkt. 19, at ¶ 11.) On the night in question, the doors to the enclosed porch were closed but unlocked. (PSUMF, Dkt. 28, at ¶ 9.)
The Salerno residence is owned by Plaintiff's husband, Angelo Salerno, Sr., and Plaintiff's brother-in-law, Roger Salerno. (Id. at ¶ 10.) Roger Salerno resides on the first floor of the residence and Plaintiff, her husband, and her son, live on the second floor. After entering the back porch, there is a separate entrance to each home. Roger Salerno's door was to the right and Plaintiff's door, which opened up to a staircase, was directly in front of the door leading into the enclosed porch.
Officer Fuller and Sergeant Galli approached the back porch and, without knocking or obtaining consent to enter the enclosed porch, opened the unlocked screen door, opened the unlocked heavier door that was flush to the screen door, and entered the enclosed porch. There were no lights illuminating the porch area when the officers entered, but Officer Fuller was illuminating the area with a flashlight. (DSUMF, Dkt. 19, at ¶ 13; Fuller Dep., Dkt. 21-5, at 39.)
The parties dispute what happened after Sergeant Galli entered the enclosed porch. In this regard, it is not clear whether the door to Plaintiff's portion of the home was ajar or closed, whether she invited the officers up the stairs or they proceeded up the stairs without an invitation, whether Plaintiff was standing or sitting when the officers arrived, and whether Plaintiff's husband was present during the incident.
The parties, however, do agree that at some point, "[t]he Officers told Mrs. Salerno that they were looking for her son Angelo Jr.," that "Mrs. Salerno indicated he was not there," and that Plaintiff responded "go ahead" when the officers asked if they could search Plaintiff's residence. (DSUMF, Dkt. 19, at ¶¶ 15, 16; Pl. Dep., Dkt. 34, at 122.) Not finding Angelo Salerno, Jr., the officers left the home.*fn2
It is also undisputed that the Exeter Borough Police Department had no written policies of any kind at the time of this incident. (Pl. Counter Statement of Fact ("PCSUF"), Dkt. 25, at ¶ 25.) The parties also agree that Sergeant Galli had been sued in the past for civil rights violations in his capacity as an Exeter Borough police officer and that each of those lawsuits settled without any liability determination. (Id. at ¶ 20.)
Chief McNeill was Galli's superior when those other suits were brought. (Id. at ¶ 21.) Neither Chief McNeill nor anyone else from Exeter Borough undertook any investigation in connection with the incidents underlying the prior civil rights lawsuits. (Id. at ¶ 22.) "Neither defendant McNeill nor defendant Exeter Borough even investigated whether Galli did anything wrong in connection with the facts underlying the present case, despite receiving a letter indicating that Linda Salerno intended to sue them because of Galli's entry into her home." (Id. at ¶ 23.)
After receiving Plaintiff's letter, Chief McNeill reviewed the police report regarding the incident and noted that the report omitted any mention of the entry into the Salerno home, or any conversations with Plaintiff. (Id. at ¶ 24.) "Entry into a home and conversations with potential witnesses or family members is the type of thing that should be written into a police report." (Id.) Even though the information is supposed to be included in the police reports, neither Chief McNeill nor Exeter Borough disciplined Sergeant Galli or Officer Fuller for failing to document the entry. (Id.)
Chief McNeill and Sergeant Galli both work a second job as security officers at the Woodlands Resort. During his deposition, Sergeant Galli testified that he does not have a title, but that he works security. (Galli Dep., Dkt. 34, at 97.) Sergeant Galli indicated that he does not make hiring or firing decisions, but that he is in charge of security in some capacity. (Id.) He indicated that he would not be considered a supervisor, but that he has been there the longest. (Id.) Sergeant Galli indicated that Chief McNeill obtained his position at Woodlands on Galli's recommendation, as did most of the security. (Id. at 99.) At the same time, however, Sergeant Galli indicated that he has no input into hiring or firing.*fn3 (Id.)
On November 16, 2007, Plaintiff filed a five count complaint against Sergeant Galli, Exeter Borough, Chief McNeill, and John Does one through five, unidentified individuals believed to be employees of the West Pittston Police Department. (Comp., Dkt. 1.) Plaintiff presented a claim of trespass, intentional infliction of emotional distress, and three claims alleging violation of Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983. (Id.) Fact discovery closed on November 1, 2008. (Aug. 29, 2008 Order, Dkt. 17.) On January 5, 2009, Defendants filed a Motion for Partial Summary Judgment. (Dkt. 18.) On January 20, 2009, Plaintiff filed a Cross-Motion for Partial Summary Judgment. (Dkt. 26.) The motions are ripe for review.
Summary judgment should be granted 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 . . . 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 non-existence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir. 1994). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988), abrogated on other grounds, Hazen Paper Co. v. Biggins, 570 U.S. 604 (1993). Once the moving party satisfies its burden, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary ...