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Connors v. Connors

June 1, 2010


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are three motions for summary judgment: (1) Defendants Michael Dessoye ("Dessoye") and David Lupas's ("Lupas") Motion for Summary Judgment (Doc. 67); (2) Defendants Lori Connors and Robert Pace's ("Pace") Motion for Summary Judgment (Doc. 75); and (3) Defendant Kathy-Jo Winterbottom's ("Winterbottom") Motion for Summary Judgment (Doc. 87).For the reasons discussed below, these motions will be granted in part and denied in part. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental).


I. Factual Background

Plaintiff Martin Connors was at all relevant times a Trooper for the Pennsylvania State Police. (Pl. Martin Connors Dep. 6:15-25, May 7, 2009.) Deborah Parker ("Parker") was at all relevant times a detective with the Luzerne County District Attorney's Office. (Parker Dep. 9:2-8, Aug. 19, 2008.)Dessoye was at all relevant times the Chief of Luzerne County Detectives. (Dessoye Dep. 8:13-18, May 8, 2009.)Nancy Violi was at all relevant times an assistant district attorney for Luzerne County. (Nancy Violi Dep. 10:13-18, Aug. 18, 2008.) Lupas was at all relevant times the Luzerne County District Attorney. (Lupas Dep. 5:9-19.) Winterbottom was at all relevant times an internal affairs investigator for the Pennsylvania State Police ("PSP"). (Kathy-Jo Winterbottom Dep. 13:8-14, Sept. 30, 2008.)

Martin and Lori Connors were married June 7, 1997. (Pl. Connors Dep. 18:13-17.) Together they had one child, a daughter. (Pl. Connors Dep. 18:18-23.) On or around January 25, 2004, the Connors separated. (Def. Connors Dep. 7:19-25, Mar. 16, 2009.) Upon separation, Plaintiff Connors left the family's home. (Def. Connors Dep. 11:21-23.) They agreed that their daughter would stay with Defendant Connors and that their daughter would have visits with Plaintiff Connors. (Def. Connors Dep. 27:10-18.) Also as part of the separation, a computer owned jointly by the Connors was left with Defendant Connors so that their daughter could use it. (Pl. Connors Dep. 26:1-6, 37:11-38:1.) The separation was caused, at least in part, due to Plaintiff Connors having an affair with Plaintiff Catherine Sabulski ("Sabulski").*fn1 (Sabulski Dep. 7:11-13, May 8, 2009.) During that affair, Plaintiffs communicated via e-mail and Plaintiff Connors took a number of sexually explicit photographs of Sabulski. (Sabulski Dep. 6:19-25.) These messages and images were later found on the computer jointly owned by the Connors. (Sabulski Dep. 6:19-25.) The computer also allegedly contained sexually explicit images of other women, including Defendant Connors. (Sabulski Dep. 7:3-10.) The computer was ultimately given to Pace, Defendant Connors's father, for safe keeping. (Supplemental Police Report, Doc. 68, Ex. D.)

Sometime in 2005, Luzerne County officials began to investigate allegations that Plaintiff Connors had abused his daughter, based upon information provided to them by the daughter's principal. (Parker Dep. 10:10-18.) Defendant Connors reported that her daughter had made comments about being inappropriately touched by Plaintiff Connors. (Def. Connors Dep. 29:20-30:4.) Defendant Connors had her daughter examined by a pediatrician, who told her that by law either she or the doctor would need to report the allegations to the authorities. (Def. Connors Dep. 45:22-46:19.) Defendant Connors met with the Kingston Police, and then later with Detective Parker. (Parker Dep. 21:7-10.) When Parker, along with Children and Youth Worker Heather Finnegan, interviewed the daughter she made no allegations of inappropriate touching by Plaintiff Connors. (Parker Dep. 31:5-11.) The daughter also did not speak of any abuse at a second interview. (Parker Dep. 35:2-3.) Similarly, a physical investigation also did not yield any evidence of abuse. (Parker Dep. 32:13-16.) At the time of the first interview, Pace brought Detective Parker a folder containing the explicit e-mails and images by the Plaintiffs, but Parker rejected it because she felt it did not deal with the child molestation issues being investigated. (Parker Dep. 39:20-40:4.) Pace later stated, or attempted to state, to Kelly Yanchulis and Father Dan Hitchko that he believed Plaintiff Connors abused his daughter. (Pl. Connors Dep. 128:9-18, 136:9-16.)

While the investigation was proceeding, a meeting was held on October 20, 2005, with Pace, Lupas, Violi, Dessoye, Parker, and Jackie Musto Carroll, another assistant district attorney, in attendance. (Dessoye Dep. 12:2-6.) Pace came into the meeting as a concerned grandfather with a bit of a vendetta against Plaintiff Connors. (Dessoye Dep. 100:19-23.) At the meeting Pace again brought forward the folder containing the sexually explicit images and e-mails that Pace stated he had recovered from the Connors' computer. (Parker Dep. 120:5-22.) Of the forty-seven (47) images brought by Pace, four (4) depicted conduct of unidentified individuals near a Motorola radio similar to those used in state police vehicles.*fn2 (Pl. Connors Dep. 41:9-18.) The remaining pictures were of Plaintiff Sabulski and "had nothing to do with" any criminal conduct. (Dessoye Dep. 104:7-14.) Pace also stated that he thought there was child pornography on the computer, and that the police should examine the folder's contents and the computer. (Supplemental Police Report, Doc. 68, Ex. D.) Pace admitted at the meeting that he realized the Connors' daughter did not mean that Plaintiff Connors had abused her, but he requested that Plaintiff Connors should be investigated anyway because he was not fit to be a trooper or a father. (Parker Dep. 99:5-13.) The other Defendants at the meeting explained to Pace that the sole purpose of the investigation was to investigate the abuse allegations, and that any other improprieties would have to be investigated by the PSP. (Parker Dep. 56:6-19.)

It was agreed, however, that it was important to at least review the evidence presented by Pace and to investigate the allegations of child pornography. (Dessoye Dep. 107:10-108:6.) Because the allegations of child pornography on the Connors' computer could be relevant to the molestation investigation, Parker spoke with Violi about seizing the computer. (Parker Dep. 42:3-22.) The computer had been in the possession of Defendant Connors or Pace for approximately two (2) years. (Parker Dep. 17:12-16.) Because it had been out of Plaintiff Connors's possession for so long, Violi told Parker that Defendant Connors alone could consent to search it. (Parker Dep. 42:18-22.) After obtaining Defendant Connors's consent (Doc. 76, Ex. I), Parker, along with Detective Becky, seized the computer. (Parker Dep. 44:9-10.) The computer was turned over to Agent Mullins of the FBI for forensic evaluation. (Dessoye Dep. 32:16-23.) After evaluating the files on the computer for child pornography, the FBI found one questionable file, but stated that it could not be determined "when it was downloaded or who downloaded it or if it could have been an accidental [download]." (Parker Dep. 15:18-16:4.) After receiving this report, Dessoye requested PSP Trooper Murphy evaluate the computer to see if the forty-seven (47) sexually explicit images could be found. (Doc. 76, Ex. P at 6.) There was never any distribution or evaluation of any other images found on the Connors' computer. (Sabulski Dep. 7:3-20.)

Subsequent to the county's investigation, Plaintiff Connors was investigated for misconduct by the PSP. Lupas instructed Dessoye and Parker to forward the information to the State Police as to things that may have occurred either in a police vehicle or at the job site, and they forwarded all of the materials from the folder provided by Pace. (Parker Dep. 67:24-66:3.) Plaintiff Connors was placed on restricted duty pending an investigation conducted by Winterbottom. (Pl. Connors Dep. 7:16-22.) Winterbottom filed a report with Plaintiff Connors's superiors including attached copies of all forty-seven (47) images reviewed. (Winterbottom Dep. 52:9-17.) Ultimately, Plaintiff Connors's superior, Captain Kenneth Hill, found the allegations to be unfounded and Plaintiff Connors was returned to full duty. (Kenneth Hill Dep. 10:24-11:8, Aug. 3, 2009.)

II. Procedural Background

Plaintiffs filed their complaint in the United States District Court for the Middle District of Pennsylvania on November 30, 2007. (Doc. 1.) Defendants Deborah Parker, Jackie Musto Carroll, Nancy Violi, and Lisa Christie were released by stipulation on March 19, 2010. (Doc. 83.) The remaining Defendants have filed the present motions for summary judgment. (Docs. 67, 75, 87.) These motions have been fully briefed by the parties, and are now 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, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 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 failed to make a sufficient showing of an essential element of her case." 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). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.


Plaintiffs bring several claims under ยง 1983 against the Defendants for violations of their constitutional rights, as well as state law claims for defamation and civil conspiracy. Plaintiff Martin Connors's remaining claims allege the following: (1) all Defendants violated his First Amendment rights by retaliating against him for seeking custody of his daughter; (2) Defendants Connors, Pace, and Dessoye violated his Fourth Amendment rights by seizing his computer without a warrant; (3) all Defendants violated his substantive due process privacy rights; (4) all Defendants conspired to violate his rights; (5) Defendants Connors, Pace, and Winterbottom defamed him; and (6) Defendants Connors, Pace, and Winterbottom entered into a civil conspiracy ...

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