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Richard D. Turzai v. the City of Pittsburgh; Robyn L. Bottesch

February 11, 2011

RICHARD D. TURZAI, PLAINTIFF,
v.
THE CITY OF PITTSBURGH; ROBYN L. BOTTESCH, INDIVIDUALLY AND AS AN OFFICER FOR THE CITY OF PITTSBURGH; JOSEPH REIFF, INDIVIDUALLY AND AS AN OFFICER FOR THE CITY OF PITTSBURGH; THOMAS HENDERSON, INDIVIDUALLY AND AS AN OFFICER FOR THE CITY OF PITTSBURGH; MATHEW TURKO, INDIVIDUALLY AND AS AN OFFICER FOR THE CITY OF PITTSBURGH; AND GEORGETTE A. SCAFEDE, INDIVIDUALLY AND AS AN OFFICER FOR THE CITY OF PITTSBURGH, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

Introduction

Pending before this court is a motion for summary judgment (Joint Mot. for Summ. J. by Defs. City of Pittsburgh and Officers Robyn L. Bottesch, Joseph Reiff, Thomas Henderson, Matthew Turko and Georgette A. Scafede, ECF No. 23) filed by defendants the City of Pittsburgh, Robyn Bottesch ("Bottesch"), Joseph Reiff ("Reiff"), Thomas Henderson ("Henderson"), Mathew Turko ("Turko"), and Georgette Scafede ("Scafede") (Bottesch, Reiff, Henderson, Turko, and Scafede, "individual defendants", and individual defendants together with the City of Pittsburgh, "defendants"), seeking summary judgment in their favor with respect to all claims asserted by Richard D. Turzai ("Turzai" or "plaintiff"). Also pending is a motion for summary judgment (Mot. for Summ. J. against Def. Scafede, ECF No. 27) filed by plaintiff solely against Scafede. Discovery was phased in this case with the first phase focused on fact discovery relating to the issue whether probable cause existed for two arrests of plaintiff. The summary judgment motions were filed after the close of the first phase of discovery and relate only to probable cause.

In his complaint filed in this case, Turzai alleged that defendants violated his civil rights and asserted several claims against (1) all defendants under 42 U.S.C. § 1983 (count I) for deprivation of liberty without due process of law, malicious prosecution, and violation of his First Amendment rights, and (2) the individual defendants under Pennsylvania law for malicious prosecution, false arrest, invasion of privacy, and illegal detention. (Compl., ECF No. 1.) Jurisdiction over plaintiff‟s federal question claims is predicated upon 28 U.S.C. § 1331 and 42 U.S.C. § 1983 and supplemental jurisdiction over plaintiff‟s state law claims is predicated upon 28 U.S.C. § 1367.

For the reasons that follow, the court will grant defendants‟ motion for summary judgment with respect to all federal question claims because there is no issue of material fact in dispute and defendants are entitled to judgment as a matter of law. Since plaintiff‟s federal law claims will be dismissed and because his remaining claims arise under Pennsylvania law, the court will decline to exercise supplemental jurisdiction over those claims. 28 U.S.C. § 1367(c)(1)(3). In light of the granting of defendants‟ motion with respect to plaintiff‟s federal claims, plaintiff‟s motion for summary judgment with respect to his federal claim against Scafede for malicious prosecution will be denied with prejudice and his state law claims against Scafede will be dismissed without prejudice.

Background*fn1

On December 23, 2008, plaintiff commenced this lawsuit. (Compl. 1.) Plaintiff‟s claims arise from his alleged unlawful arrests on May 2, 2006, for stalking, criminal mischief, and criminal trespass and on June 7, 2006, for retaliation against a witness. (Pl.‟s Concise Statement of Material Facts ("Pl.‟s facts") at 6, 8, ECF No. 30.)

In 2004, Michelle Berard ("Berard") purchased a home at 2311 Larkins Way on the City of Pittsburgh‟s South Side. (Defendants‟ Concise Statement of Undisputed Material Facts ("Def.‟s facts") 1, ECF No. 26.) Berard‟s property adjoined plaintiff‟s property. (Pl.‟s facts at 1.) Berard intended to live in the home after completing significant interior and exterior renovations, including altering the rear of the structure by adding a second story, removing a concrete patio, and replacing an old wooden fence. (Pl.‟s facts at 1, Def.‟s facts at 1.)

At the time Berard purchased her property, there was a wooden stockade fence which separated her backyard from Turzai‟s yard. (Pl.‟s facts at 2.) The fence provided privacy between the two properties and from foot traffic on Larkins Way. (Id.) Although only one of the fence‟s gates was on Berard‟s property, she tore down the fence and both gates in the spring or summer of 2004. (Id.) Berard did not obtain plaintiff‟s permission or notify him of her intent to tear down the fence. (Id.) Plaintiff shouted at Berard claiming that she had taken down his fence. (Def.‟s facts at 2.) After the fence was torn down, plaintiff noted on several occasions that third persons entered onto his property and left beer bottles, women‟s tampons and other trash. (Pl.‟s facts at 3.) Plaintiff repeatedly requested that Berard erect a temporary fence for privacy, which Berard did not do. (Pl.‟s facts at 2.) A property dispute escalated from there. (Def.‟s facts at 2.)

During the course of her renovations, Berard began construction of a deck which was located at the rear of her house on the side adjacent to plaintiff‟s property. (Pl.‟s facts at 3.) In January 2006, Turzai had a survey performed which showed that Berard‟s new deck extended approximately one inch onto his property. (Id.) On March 17, 2006, Berard called 911, claiming that Turzai posted a sign on her deck. (Pl.‟s facts at 2.) Reiff was on duty as a uniformed police officer for the City of Pittsburgh assigned to Zone 3 and responded to Berard‟s 911 call. (Pl.‟s facts at 3, Def.‟s facts at 2.) Reiff spoke with Berard and received information which he noted in the police report as follows:

The victim Michelle Berard stated that she owns the property at 2311 Larkins Way. Ms. Berard stated that she does not reside at this location yet but is remodeling it.

Ms. Berard stated that for several weeks her neighbor [Richard Turzai] has been harassing her every time she comes to the house. Ms. Berard stated that the harassing started with low level verbal assaults but has since escalated. Ms. Berard has not seen the suspect performing the following acts but feels that he is responsible. Ms. Berard stated that over the past several days when she came to the house she noticed that someone had put several female undergarments on her back deck. Ms. Berard stated that the suspect also placed several condoms on the rear deck. Ms. Berard stated on the morning of 3/17/06 she came to the house and noticed that the suspect had nailed a sign stating "No sluts allowed" to a wooden post on her deck. (Def.‟s facts at 2.)

Reiff did not speak to Turzai. (Pl.‟s facts at 4, Def.‟s facts at 2.) Berard confirmed that the narrative in the police report prepared by Reiff accurately represented the information that she provided him on March 17, 2006. (Def.‟s facts at 3.) Reiff listed the suspected offense as harassment pursuant to 18 PA. CON. STAT.§ 2709. (Pl.‟s facts at 4.) Reiff did not conduct any follow-up on Berard‟s complaint and the case was turned over to plainclothes detectives for possible further investigation. (Def.‟s facts at 3.)

On April 11, 2006, Berard again called 911 to complain about Turzai. (Pl.‟s facts at 4, Def.‟s facts at 3.) Turko, a field training officer, and Henderson, a police recruit, were working as uniformed officers in Zone 3 and responded to the call. (Id.) Turko and Henderson spoke to Berard. (Id.)

Turko and Henderson prepared an investigative report which provided:

On the listed time and date R/Os responded to 2311 Larkins Way for a Harassment Report. Upon arrival we were met by Victim Berard. She stated that she has been having on going [sic] problems with the neighbor next door. Berard states that the neighbor has thrown condoms and underwear on her property and posted signs on her property. On today‟s date she showed us a sign that was nailed to her deck that read "Achtung! Verboten no sluts, homos, psychos, weirdos or commode scum allowed."

R/Os spoke with the next door neighbor, identified as Turzai, Richard. He took credit for the sign nailed to the victim‟s deck and did not deny throwing items onto her property. Turzai states that he believes the property his neighbor is building on belongs to him. R/Os advised him to stop his behavior and to explain the situation to the Magistrate when court is set.

R/Os advised the victim keep [sic] sign for court purposes and to go to the Magistrate and file charges for harassment. (Pl.‟s facts at 4, Def.‟s facts at 3-4.)

Berard confirmed that the investigative report correctly stated the information she relayed concerning her ongoing dispute with Turzai. (Def.‟s facts 4.) She stated in her deposition that she did not consider going to the magistrate to file a complaint against Turzai. (Pl.‟s facts 4.) Turko‟s and Henderson‟s investigative report was submitted for filing at Zone 3 station. (Pl.‟s facts at 4, Def.‟s facts at 4.) Turzai and Berard were advised to see the local magistrate and the assistant district attorney assigned to that office to settle their dispute. (Id.)

Approximately two weeks after the April 11, 2006, 911 call, Turko, Henderson and another unidentified uniformed officer pushed their way past Turzai and entered his home without his authorization. (Pl.‟s facts at 4-5.) Turzai proceeded into his living room to retrieve his identification and was followed by the unknown officer. (Pl.‟s facts at 5.) He informed the officers that he had a survey done showing the property lines and that Berard‟s deck extended approximately one inch onto his property. (Pl.‟s Responsive Concise Counterstatement of Material Facts ("Pl.‟s Counterstatement") at 2, ECF No. 37.) Turzai admitted to posting a sign that read "Achtung! Verboden. No sluts, homos,psychos, weirdoes or commode scum Allowed." (Pl.‟s facts at 5.) The unknown officer told plaintiff that Berard was upset about the signs and asked him to stop posting the signs. Plaintiff agreed. (Id.) The unknown officer stated that Berard would be sending Turzai a letter confirming that he did not intend to put up any more signs. (Id.) One of the officers joked with Turzai that they liked his signs. (Id.) Plaintiff did not have any further interaction with defendants until his arrest. (Id.)

According to the City of Pittsburgh‟s policy, the investigation of the incidents involving Turzai and Berard was assigned to Bottesch. (Def.‟s facts at 5.) In conducting her investigation, Bottesch spoke to Berard, reviewed the reports prepared by Reiff and Turko, interviewed Turzai‟s neighbors, Mr. and Mrs. Buck, and attempted to interview Turzai on two occasions. (Pl.‟s Counterstatement at 2, Def.‟s facts at 5.) Bottesch was unsuccessful in speaking to Turzai as there was no response on either occasion that she knocked on his door. (Pl.‟s Counterstatement at 4.) She did not leave a card or note or attempt to call Turzai. (Id.) Based upon her investigation, Bottesch concluded that Turzai had committed the crimes of stalking, criminal mischief and criminal trespass (as a simple trespasser) and prepared an affidavit of probable cause. (Pl.‟s facts at 5-6, Def.‟s facts at 5-6.)

On April 27, 2006, Bottesch prepared an investigative report. (Pl.‟s facts at 5-6.) The name of Bottesch‟s partner, Scafede, appears on the report, but Scafede did not participate in the investigation or the writing of the report. (Pl.‟s facts at 5.) The investigative report detailed the interactions between Turzai and Berard as follows:

Michelle Berard stated that her neighbor, Richard Turzai has been harassing her. Berard owns the property at 2311 Larkins Way and is remodeling it. Berard stated that for several weeks during the month of March, when she would got [sic] to 2311 Larkins Way, Turzai would yell at her for no reason. Turzai would state "Fuck you Bitch!", and then spit at her. Since then it has escalated. On 3/17/06 when she came to the house and noticed Turzai had nailed a sign to her rear wooden porch post stating "No sluts allowed"! Turzai also hung a huge blue tarp up on her rear porch that had German writing on it that read "Achtung! Verboten no sluts, homos, psychos, weirdos or commode scum allowed!"

On 4/11/06 Officers Turko and Henderson went to take another report from Berard. This time Turzai nailed two more cardboard signs to her rear deck porch posts. They stated "No assholes, whores or sluts!" "Don‟t touch the fucking fence"!

That same day the said Officers went to talk to Turzai. Turzai admitted to going on her property and nailing the signs to her deck. Detectives talked to Berard‟s neighbor, Kim Buck. Buck states that she observed Turzai on two occasions in the month of March pissing on Berard‟s siding of her house and into the outlets. Buck also observed Turzai nailing the cardboard signs to her deck and blue tarps.

Everytime [sic] that Turzai did these things he trespassed on Berard‟s property to do so. At no time was he given permission to be on her property.

Estimated damage to Berard‟s property is approximately $560.00. That is from the damage to her rear deck/posts, siding of her house, outlets. (Def.‟s facts at 6.)

Bottesch listed stalking (18 PA. CON. STAT. § 2709.1); criminal mischief (18 PA. CON. STAT. § 3304) and criminal trespass (as a simple trespasser), (18 PA. CON. STAT. § 3503) as suspected offenses and indicated that a warrant would be sought for Turzai‟s arrest. (Pl.‟s facts at 6.)

On the same day that Bottesch filed her report, April 27, 2006, Berard called the police in response to a new sign on the deck. (Pl.‟s facts at 6.) Officer S. Luff responded and spoke to Berard. (Pl.‟s facts at 6.) Officer Luff was unable to make contact with Turzai at the time and referred Berard to the magistrate judge in order to file a complaint. (Pl.‟s facts at 6.)

An affidavit of probable cause filed on May 2, 2006, set forth the following facts in support of the charges against Turzai:

Between March 1, 2006 [and] April 11, 2006, Michelle Berard stated that her neighbor, Richard Turzai has been harassing her. Michelle Berard owns the property at 2311 Larkins way and is remodeling it. Michelle Berard stated that for several weeks during the month of March, when she would go to 2311 Larkins Way, Richard Turzai would yell at her for no reason. Richard Turzai would state "Fuck you Bitch!", and then spit at her. Since then it has escalated. On 3/17/06 when she came to the house and noticed Richard Turzai had nailed a sign to her rear wooden porch stating "No sluts allowed"! Richard Turzai also hung a huge blue tarp up on her rear porch that had German writing on it that read "Achtung! Verboten no sluts, homos, psychos, weirdos or commode scum allowed!"

On 4/11/06 Officers Turko and Henderson went to take another report from Berard. This time Turzai nailed two more cardboard signs to her rear deck porch posts. They stated "No assholes, whores, or sluts!" "Don‟t touch the fucking fence"! That same day the said Officers went to talk to Turzai. Turzai admitted to going on her property and nailing the signs to her deck.

Detectives talked to Berard‟s neighbor, Kim Buck. Buck states that she observed Turzai on two occasions in the month of March exposing his penis, pissing on Michelle Berard‟s siding of her house and into the outlets. Kim Buck also observed Richard Turzai nailing the cardboard signs and blue tarps to her deck.

Every time that Richard Turzai did these things he trespassed on Michelle Berard‟s property to do so. At no time was he given permission to be on her property. Estimated damage to Berard‟s property is approximately $560.00. That is from the damage to her rear deck/posts, siding of her house, outlets. (May 2, 2006 Probable Cause Affidavit, ECF No. 29-5.)

The affidavit was forwarded to an assistant district attorney who approved the charges without changes. (Pl.‟s facts at 5-6, Def.‟s facts at 5.) The affidavit was reviewed and an arrest warrant was issued by a magistrate judge without change. (Pl.‟s facts at 6, Def.‟s facts at 7.) Turzai was arrested without incident on May 2, 2006, and charged with stalking, criminal mischief, and criminal trespass (as a simple trespasser), based upon the arrest warrant obtained by Bottesch. (Pl.‟s facts at 6.)

On May 10, 2006, a preliminary hearing was held in Commonwealth v. Richard D. Turzai, Allegheny County Court of Common Pleas, Docket Number CC200611560, on the charges of criminal stalking, criminal trespass (as a simple trespasser), and criminal mischief. (Pl.‟s facts at 6, Def.‟s facts at 9.) The magistrate judge held the charges for court. (Def.‟s facts at 7.) The magistrate judge also issued a "No Contact Order" between Turzai and Berard. (Pl.‟s facts at 6, Def.‟s facts at 7.) Turzai spent twelve days in jail before he posted bond on May 14, 2006. (Pl.‟s facts at 6.) Following the preliminary hearing, there was a second review of the charges by an assistant district attorney. (Def.‟s facts at 7.) No charges were amended or dropped. (Def.‟s facts at 7.)

On May 14, 2006, the day Turzai posted bond, he returned home, entered his residence and saw Berard arrive. (Pl.‟s facts at 7.) Later the same day, Turzai‟s sister, Constance Patterson ("Patterson"), arrived. (Id.) While Turzai and Patterson were in the alleyway looking at the property line as shown on the survey, Berard exited her home from the kitchen door and demanded to know how and why Turzai had been released from jail. (Id.) Turzai responded by stating that Berard was a liar and that Berard‟s deck was on his property. (Id.)

Berard called the Zone 3 station to speak to Bottesch about the incident. (Pl.‟s facts at 7, Def.‟s facts at 7.) Because Bottesch was on vacation, Berard spoke with Scafede. (Pl.‟s facts at 7, Def.‟s facts at 7.) Berard informed Scafede that she had been in her yard with a handyman, James Novak ("Novak"), when plaintiff and his sister appeared and began to berate her. (Def.‟s facts 8.) According to Berard, Turzai pointed at her and told her that she was going to regret moving there and that she would regret that she bought the property. (Def.‟s facts at 8.) Berard relayed that Turzai stated that she was a "fucking liar" and "despicable" and she could not have him thrown in jail. (Def.‟s facts at 8.) Following this conversation, Scafede spoke to Novak. (Def.‟s facts at 8.) Scafede did not attempt to contact Turzai during her investigation. (Pl.‟s facts at 8.) Scafede contacted the magistrate judge who issued the "No Contact Order" between Turzai and Berard. (Pl.‟s facts at 7, Def.‟s facts at 8.) The magistrate judge told Scafede to obtain a warrant for Turzai. (Id.) Scafede testified that prior to filing the affidavit of probable cause, on May 12, 2006, she was contacted by Turzai‟s brother, William Turzai, who wanted to "302"*fn2 his brother. (Scafede Dep. 32-35.) According to Scafede, "he said that Richard was off his medication, that he was drinking heavily and that he had weapons in the house." (Scafede Dep. 32.) Scafede testified that this information caused her to be concerned for Berard. (Scafede Dep. 35.) Scafede spoke to Turzai‟s neighbor, Robert Buck, on May 16, 2006. (Scafede Dep. 36-37.)

After consulting the crimes code, Scafede prepared an affidavit of probable cause charging plaintiff with retaliation against a witness and submitted it to an assistant district attorney. (Id.) In the affidavit of probable cause Scafede stated:

 Danger to self shall be shown by establishing that within the previous 30 days:

 the person would be unable without the care, supervision and assistance of others to satisfy his/her need for nourishment, personal or medical care, shelter or self protection or safety and that death or serious physical debilitation would occur within 30 days unless treatment was provided; the person has attempted suicide or the person has made threats to commit suicide and committed acts in furtherance of the threats; or

 the person has attempted suicide or the person has made threats to commit suicide and committed acts in furtherance of the threats; or

 the person has mutilated himself/herself or the person has made threats to mutilate themselves and committed acts in furtherance of the threats.

 Danger to others shall be shown by establishing that within the previous 30 days the person has inflicted or attempted to inflict serious bodily harm on another or has threatened serious bodily harm and has committed acts in furtherance of the threat to commit harm to another.

Because this commitment is involuntary it may require the assistance of family, crisis professionals, police, ambulance and any other person involved in the crisis.

In every 302 a petitioner is required to sign the 302 and appear at a hearing if necessary.

A petitioner must have first-hand knowledge of the dangerous conduct and be willing to go to an emergency room or the Office of ...


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