The opinion of the court was delivered by: Stengel, J
Stengel, J. February 21, 2011
Before the Court is a motion for summary judgment filed by the defendants in this action, Pasquale Leporace and the City of Reading. The plaintiff, Jason Spears, asserts claims under Section 1983 for violations of the Fourth Amendment. For the reasons set forth below, I will grant defendants' motion for summary judgment.
Mr. Spears filed his Section 1983 complaint pro se, alleging that Pasquale Leporace, a police officer, unlawfully searched him in violation of the Fourth Amendment. He contends the City of Reading*fn1 is subject to supervisory liability. The facts giving rise to Mr. Spears's complaint are as follows: on February 23, 2008, numerous City of Reading police officers entered the Travelers Bar at 1701 Cotton Street in Reading. Among them was Criminal Investigator Leporace. Mr. Spears claims that Leporace knew him from previous encounters and that, when Leporace saw him, "he came right over to me and started searching me, 'claiming' that I had a gun, even though I told him that I had no gun and I continually told him that he couldn't search me[.]" Complaint, 4. Mr. Spears's complaint contains no further description of the events leading to the search.*fn2
Leporace memorialized the encounter in a police report filed two days after the incident, and later testified about it during a suppression hearing in the Berks County Court of Common Pleas. He arrived at the bar that day to investigate complaints about drug sales. Leporace Report, Def.'s Ex. A ("Report") at 4. Travelers Bar is located in a high-crime area of Reading known for violence and drug activity. Leporace Affidavit, Def.'s Ex. C, ¶ 2. The bar has been the subject of prior complaints about drug activity. Id. at 3. When Leporace walked inside, he saw Spears sitting at the bar. Id. Spears looked towards the officers entering the bar, adjusted an item in his waistband, and then placed his left hand in his left jacket pocket. Id.; Tr. Supp. Hr'g, June 10, 2008 ("Tr.") 9:3-12; 11:14-16. Spears was wearing a thick winter jacket even though it was warm inside the bar. Report, 4; Tr., 11:21-25. Leporace approached Spears and asked him if he had a gun. Report, 4. Spears became nervous and alluded to previous encounters with Leporace, saying, "You stopped me before . . . but I'm good now." Id. Leporace told Spears that he was going to conduct a pat down for a gun. Id. In conducting the pat down, Leporace found three cellular phones in Spears's pocket. Id. According to Leporace, he then asked Spears if he could conduct a search, and Spears answered, "sure." Id. As Spears stood up, he removed his jacket and placed it next to him. Id. Another officer, Sergeant Kloc, began to search the jacket. Id. He stopped when he heard Spears mumble something, and then asked Spears if he could resume the search of the jacket. Id. Spears consented, Kloc resumed the search, and Kloc found a handgun with obliterated serial numbers in a pocket of the jacket. Id. at 5.
In his affidavit, Leporace asserts that he made the decision to conduct a pat down search of Mr. Spears based on a number of factors. He explains that he reported to the bar based on a complaint of drug trafficking, that individuals engaged in drug trafficking often carry numerous cell phones, and that guns are often present when drug transactions are made. He also stated that, based on this knowledge and on his observations of Mr. Spears's conduct, including his adjustment of his waistband and nervous demeanor, he believed Spears was armed. Leporace Affidavit, ¶¶ 4-7.
The officers arrested Mr. Spears and he was subsequently charged with being a felon in possession of a firearm, carrying a concealed weapon without a license, and possession of a firearm with an obliterated serial number. Def.'s St. Undisputed Facts, ¶ 39. However, following a suppression hearing, the Court of Common Pleas of Berks County suppressed the physical evidence obtained during the search and the statements later made by Mr. Spears. See Commonwealth of Pennsylvania v. Jason Spears, No. 1228 MDA 2008 (Super. Ct. Mar. 12, 2009). The Commonwealth appealed the decision and the Superior Court affirmed the lower court's suppression order. Id.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing relevant portions of the record, including depositions, documents, affidavits, or declarations, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or showing that an adverse party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c). Summary judgment is therefore appropriate when the non-moving party fails to rebut the moving party's argument that there is no genuine issue of fact by pointing to evidence that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).
Mr. Spears filed this action under 42 U.S.C. § 1983, alleging that Leporace violated his Fourth Amendment right to be free from unlawful search and seizure. He also includes a derivative Monell claim, arguing that the City of Reading is liable for Leporace's conduct. Leporace and the City of Reading have filed a motion for summary judgment seeking dismissal of Spears's complaint. They argue (1) that Leporace had reasonable suspicion to conduct a pat down of Spears; (2) alternatively, that Leporace had Spears's consent to conduct the pat down;
(3) that Leporace is entitled to qualified immunity; and (4) that Spears has not produced sufficient evidence in support of ...