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Amber Price v. Geroge Roberts

May 16, 2011

AMBER PRICE, PLAINTIFF,
v.
GEROGE ROBERTS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Mitchell

MEMORANDUM OPINION

Plaintiff, Amber Price, a former police officer in the Borough of Burgettstown, brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging various federal and state law claims arising out of her allegation that she was not provided a locker as were male police officers, her discovery of a hidden video camera in the room at the police station where she alleges she was forced to dress and undress, and criminal charges that were filed against her in 2009 and later withdrawn after she reported the hidden video camera. She names three groups of defendants: 1) three members of the Pennsylvania State Police (Corporal Christopher J. Neal, Trooper Aaron Borello and former Commissioner Frank Pawlowski) (together, the "PSP Defendants"); 2) the Borough of Burgettstown and Borough Chief of Police George Roberts (together, the "Burgettstown Defendants"); and 3) Washington County, Pennsylvania, Washington County Chief Detective J. Michael Aaron and District Attorney Steven M. Toprani (together, the "Washington County Defendants").

Currently pending for disposition is a motion to dismiss filed by the PSP Defendants. For the reasons that follow, the motion will be granted with respect to Counts 4, 5, 8, 10, 11, 15, 17 and 25 and the official capacity aspect of the claims in Counts 13, 18 and 20. The motion will be denied with respect to the individual capacity aspect of the claims in Counts 13, 18 and 20.

Finally, Plaintiff may amend the complaint to amplify her allegations regarding the § 1983 abuse of process claim against Corporal Neal in Count 13 and her § 1983 false imprisonment claims in Counts 18 and 20 and to add a claim of retaliatory prosecution.

Facts

Plaintiff was employed as a police officer for the Borough of Burgettstown from some point in 2002 until February 4, 2009. She alleges that, during that time, she was the only female police officer employed with the Borough and that she was not afforded the same accommodations as the male officers, including a locker and a suitable place to get dressed and undressed. (Compl. ¶¶ 13-14.) Rather, for six years, and despite her repeated requests for a locker, she was required by Borough Chief of Police George Roberts ("Chief Roberts") and the Borough to dress and undress in a particular room at the police station. (Compl. ¶¶ 21, 93, 101-02.)

On November 26, 2008, Plaintiff discovered a video camera hidden in a ceiling vent in the room, along with cords/wires attached to the video camera that had been hidden by ceiling tiles and were connected to an electrical outlet and other cords/wires that ran to the storage/evidence room. She alleges that Chief Roberts and Washington County Chief Detective J. Michael Aaron ("Chief Detective Aaron") knew that she used this room to dress and undress, that they placed the video camera in the room at the direction of or with the approval of Washington County District Attorney Steven M. Toprani ("D.A. Toprani"), and that other Burgettstown police officers and/or municipal employees knew or should have known that she dressed and undressed in the room the camera faced. (Compl. ¶¶ 22-25, 27.) Plaintiff believes that the camera was placed in the room to capture video of another officer having sex with a female acquaintance, possibly for the purpose of blackmailing that officer. (Compl. ¶¶ 26, 28.)

Plaintiff reported the placement of the hidden video camera to the Pennsylvania Attorney General‟s Office. On or about December 18, 2008, the Attorney General‟s Office notified her that she must first report the camera to the Washington County District Attorney‟s Office to conduct an inquiry and determine if any conflict existed that would prevent it from conducting an investigation. On or about December 20, 2008, Plaintiff and her father, Robert Price, met with Chief Detective Aaron at his residence to discuss the placement of the hidden video camera. (Compl. ¶¶ 29-31.)

Chief Detective Aaron informed Plaintiff that, on October 15, 2008, he had brought the video camera from the Washington County District Attorney‟s Office to the Burgettstown Police Station, where he and Chief Roberts installed it. He further stated that the camera was connected to a video cassette recorder located in a locked storage/evidence room at the police station, that the camera had recorded images of the room where she dressed and undressed and that it had possibly recorded images of her dressing and undressing. He stated that he would refer the matter to the Attorney General‟s Office for investigation. (Compl. ¶¶ 32-37.)

January 8, 2009 Interrogation

On January 8, 2009, Plaintiff was at the Burgettstown Police Station when Chief Roberts told her not to leave the station because "men in suits" wanted to talk to her. Shortly thereafter, Corporal Neal and Trooper Timothy Motte of the PSP arrived at the station and directed her to "meet in private." Subsequently, they, along with D.A. Toprani, conducted an interrogation of Plaintiff regarding Michael North, Harold Dean Huber and the arrest of Harold Dean Huber. (Compl. ¶¶ 38-42.)

On March 21, 2008, Plaintiff had assisted Officer Michael North, a Smith Township, Pennsylvania police officer, in a vehicle stop and arrest of Harold Dean Huber for violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act. Specifically, Huber‟s vehicle was stopped and he was found to be in possession of a quantity of controlled substances consistent with his intent to deliver. (Compl. ¶ 15.) Officer North, who believed that controlled substances might be found in the home of Harold Dean Huber, prepared an affidavit of probable cause for a search warrant of Huber‟s home (the "search warrant affidavit") and gave it to Plaintiff to sign and present to a Washington County magisterial district judge.*fn1 However, the search warrant affidavit stated that "this officer saw Huber leaving his residence," such that when Plaintiff signed it, she erroneously indicated that she had seen Huber leaving his residence a short time before he was stopped in his vehicle where controlled substances were found. Plaintiff states that she overlooked this statement because she was in a hurry and that her own affidavit of probable cause for the criminal complaint (the "complaint affidavit") and her police report made it clear that she had not seen Huber leave his residence that morning. She presented the search warrant affidavit to a magisterial district judge that same day, March 21, 2008, and it was signed, thereby authorizing a search of Huber‟s home. (Compl. ¶¶ 16-20.)

When Corporal Neal interrogated her on January 8, 2009 about the Huber incident, Plaintiff came to believe that he was in the process of filing criminal charges against her, acting at the direction of Chief Detective Aaron and D.A. Toprani. She states that she did not believe that she was free to discontinue the interrogation and leave the premises without subjecting herself to arrest and/or the use of physical restraint and that her belief was reasonable. She also alleges that Chief Roberts, who was an acquaintance of Harold Dean Huber, was aware of and/or assisted in this interrogation. (Compl. ¶¶ 43-48.)

January 14, 2009 Interrogation

On January 14, 2009, Plaintiff learned of the arrest of Smith Township Police Officer Derek Dayoub, an acquaintance of hers, and she traveled to the State Police barracks in Washington, Pennsylvania, where he was being detained. When she arrived, she was confronted by Trooper Aaron Borello and D.A. Toprani and was directed to an upstairs room to "meet in private." Subsequently, Trooper Borello and D.A. Toprani conducted an interrogation, which included questioning Plaintiff regarding Officer Dayoub, her relationship with him and his ethnicity. Again, she states that she did not believe that she was free to discontinue the interrogation and leave the premises without subjecting herself to arrest and/or the use of physical restraint and that her belief was reasonable. In fact, she repeatedly asked if she could leave and was told she could not. (Compl. ¶¶ 49-55.)

Charges Are Filed

On or about February 5, 2009, Corporal Neal filed a criminal complaint before Magisterial District Judge Gary Havelka, charging Plaintiff with the following crimes: 1) criminal conspiracy to commit the crimes of official oppression and false swearing in official matters, 18 Pa. C.S. § 903(a)(1); 2) official oppression, 18 Pa. C.S. § 5301; and 3) false swearing in official matters, 18 Pa. C.S. § 4903(a)(1-2)). These charges arose out of the March 21, 2008 search warrant affidavit, which erroneously stated that Plaintiff had seen Huber leaving his house when in fact she had not. (Compl. ¶¶ 57-58.) Corporal Neal averred that:

On January 8, 2009 I reviewed a copy of the search warrant and affidavit bearing Burgettstown Police incident number 127-08. This was signed by District Justice Wilson and was to search the residence at 52 Dinsmore Rd., Burgettstown, PA. Harold Huber resides at this location. Huber had been arrested earlier on a traffic stop and the affidavit of probable cause was based on details of that stop including a stated fact that Price had seen Huber leaving his residence immediately prior to the traffic stop. Additionally, Price submitted a police report reviewed by me stating that she had seen him leaving the residence immediately prior to the traffic stop. (Compl. ¶ 60 & Ex. A at 6.)

Plaintiff states that her actual police report stated that:

On Friday 21 March 2008 at 2122 hours, I was getting into my police car in the parking lot of the police department when Officer North with Smith Township Police contacted me. Officer North advised me that he was coming out of Frances Mine on Maple Road, following a Dodge Ram with a burnt out license plate lamp. I advised Officer North to initiate a traffic stop until I arrive. Officer North initiated the traffic stop on Main Street in Burgettstown directly in front of the Burgettstown Police Department. When Officer North approached the driver side of the vehicle, he spoke with the driver who identified himself as Harold Huber. As Officer North was speaking with Huber, I walked up to the driver side of the vehicle and could smell a strong odor of burnt marijuana emanating from inside of the vehicle. After Officer North gave Huber back his drivers license and registration, I asked Huber to step out of the vehicle. Huber stepped out and walked to the rear of his vehicle and was told to keep his hands out of his pockets. Huber kept making furtive movements by attempting to put his hands into his pockets. Huber was told to place his hands on the tail gate of the truck and was searched for weapons. As Huber‟s left side pants pocket was being searched, a foreign object was felt. After going into Huber‟s pants pocket, Officer North located a baggy containing two individually packaged baggies of cocaine.

After completing a search of Huber‟s person, Officer North located four one hundred dollar bills in his back pants pocket and sixty four dollars in his wallet. I then searched the immediate area of the vehicle and located two burnt marijuana joints in the ashtray along with two packages of rolling papers.

Huber was arraigned at Hanover Townships Station in front of Judge Wilson.

Huber was placed in Washington county jail on $10,000 straight bond.

Judge Wilson consented to a search warrant of 52 Dinsmore due to the fact the actor left the residence with the drugs.. (Compl. ¶¶ 62-63 & Ex. B at 1-2.) She also alleges that her complaint affidavit was identical to the police report. (Compl. ¶¶ 64-65 & Ex. C.) Thus, neither the police report nor the complaint affidavit explicitly stated that Plaintiff saw Huber leaving his residence immediately prior to the vehicle stop although, as the PSP Defendants note, these documents did state that Huber "left his residence with the drugs," thereby implying that someone saw this take place.

On or about February 4, 2009, Plaintiff was advised by the Borough of Burgettstown that she was suspended pending disposition of the criminal charges against her. She states that she has never returned to her position as a Burgettstown police officer. (Compl. ¶ 70.)

Preliminary Hearing

On March 18, 2009, Plaintiff‟s preliminary hearing was conducted before Magisterial District Judge James Ellis. Assistant District Attorney Joshua Carroll of the Washington County District Attorney‟s Office appeared for the prosecution and Plaintiff was represented by Attorney Dennis Paluso. A.D.A Carroll‟s only witness was Corporal Neal, who repeatedly made the false assertion that Plaintiff had stated in her police report that she had seen Huber leaving his house on the date he was arrested. (Compl. ¶¶ 72-78.) At the close of the preliminary hearing, the charges against Plaintiff were dismissed. (Compl. ¶ 79.)

Charges are Re-filed

However, on March 23, 2009, Corporal Neal re-filed a criminal complaint, charging Plaintiff with the same crimes as before, and adding another count of false swearing in official matters, 18 Pa. C.S. § 4903(a)(1-2). Plaintiff alleges that Corporal Neal took this action at the direction of or with the approval of D.A. Toprani and that the intent was to harass her for complaining about the video camera placed in the room where she dressed and undressed. (Compl. ¶¶ 83-84, 89.)

In addition, on that same date, D.A. Toprani filed a Motion for Temporary Assignment of Issuing Authority before Judge Debbie O‟Dell Seneca of the Court of Common Pleas of Washington County, alleging that the prosecution had met its burden of presenting a prima facie case and that Magisterial District Judge Ellis had committed unspecified errors of law. On that same date, and without granting a hearing, Judge Seneca granted the motion and reassigned the case to Senior Magisterial District Judge Marjorie Teagarden. (Compl. ¶¶ 87-88, 90 & Exs. D, E.)

Plaintiff‟s counsel, Attorney Paluso, filed a motion to vacate the reassignment order. On September 3, 2009, the charges against Plaintiff before Senior Magisterial District Judge Teagarden were withdrawn. Plaintiff alleges that the charges were withdrawn to avoid disclosure of the allegations made in Attorney Paluso‟s motion to vacate, namely that the charges had been brought against her to retaliate for her having complained about the hidden video camera. (Compl. ¶¶ 91-95.)

Plaintiff alleges that neither Chief Detective Aaron nor D.A. Toprani referred the investigation of the hidden video camera to the Attorney General‟s Office. Rather, they directed Plaintiff to submit information to McDonald Borough Police Chief Mark Dorsey to conduct some sort of "review" of the hidden camera incident. On February 20, 2009, Plaintiff submitted information to Chief Dorsey, ...


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