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David Bush, et al. v. S.C. Adams

May 18, 2011

DAVID BUSH, ET AL.
v.
S.C. ADAMS, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action arises out of the efforts of plaintiffs David Bush and his brother Christopher Bush to locate David Bush's children in 2006 and 2007. In 2004, David Bush consented to the entry of a Protection from Abuse ("PFA") order against him and in favor of his ex-wife, Isara Isabella Serene.*fn1 The PFA order granted primary physical custody to Serene, who took the children from Pennsylvania to Virginia and changed their identities in an effort to avoid being found. After the PFA order expired in 2006, David Bush enlisted the help of his brother, Christopher Bush, a police officer in Newtown Township, Pennsylvania, to locate his children. David Bush obtained a custody order from a Pennsylvania court, which was later vacated as improperly granted, and subsequently enlisted the aid of the Virginia police to take custody of the children. The Virginia police removed the children from school and brought them to their father, who in turn returned to Pennsylvania with the children.

Upon learning that her children had been given to her ex-husband, Serene succeeded in having the court order granting custody to David Bush vacated for lack of jurisdiction. Serene also enlisted the help of the Pennsylvania State Police ("PSP"). As a result of these efforts, the Virginia police issued a warrant for David Bush's arrest for child abduction by a parent and for conspiracy. David Bush was arrested in Pennsylvania and was extradited to Virginia where the charges against him were ultimately dropped. Serene was later awarded full custody over the children, and David Bush was awarded no visitation rights. Christopher Bush, in turn, was investigated and disciplined by the PSP for his actions in assisting his brother.

David and Christopher Bush filed this suit under 42 U.S.C. § 1983, as well as state law, seeking damages both for David Bush's arrest and for the PSP investigation into Christopher Bush's activities. In their first amended complaint, the plaintiffs named as defendants Isara Isabella Serene; two officers of the Richmond, Virginia Police Department, Sergeant Sean Adams and Lieutenant Brian Russell; and three officers of the PSP, Captain Kenneth Hill, Lieutenant Steven J. Ignatz, and Sergeant Joseph Tripp.

In a Memorandum and Order dated November 3, 2008, this Court found that it lacked personal jurisdiction over defendants Adams and Russell.*fn2 In a subsequent Memorandum and Order dated January 27, 2009, the Court dismissed all claims against defendant Serene for failure to state a claim and for lack of personal jurisdiction. The only defendants remaining in this action are therefore defendants Hill, Ignatz, and Tripp.*fn3

Defendants Hill, Ignatz, and Tripp have moved for summary judgment on Christopher Bush's claims. After a full round of briefing, the Court held oral argument on October 25, 2010. For the reasons that follow, the Court will now grant the motion.

I. Summary Judgment Record

The Court begins with the summary judgment record,

which consists largely of undisputed facts except where otherwise noted. The Court remarks as an initial matter, however, that many of the statements of fact offered in the plaintiffs' opposition brief do not find support in the record. In several instances, the record either fails to support the plaintiffs' claims, or the pages on which the plaintiffs rely are altogether missing. The Court has therefore attempted to piece together the undisputed facts based on its own independent review of the record, and will highlight any discrepancies below.

David Bush and Isara Isabella Serene were married in July of 1993 and had three children during their marriage. On July 6, 2004, David Bush consented to the entry of a Protection from Abuse ("PFA") order against him and in favor of Serene. The PFA order granted Serene primary physical custody of the three children. David Bush was prohibited from contacting Serene, and was granted no partial physical custody or visitation rights. The order expired on January 6, 2006. December 22, 2009 Dep. of David Bush ("12/22/09 D. Bush Dep."), Ex. 1 to Defs. Hill, Ignatz and Tripp's Mem. of Law in Support of the Mot. for Summ. J. ("Defs.' S.J. Br."), at 7; July 6, 2004, Protection from Abuse Order, Ex. 3 to Defs.' S.J. Br, ¶¶ 3, 5, 9.

After the PFA order expired, David Bush sought to obtain visitation rights with his children. Before a visitation hearing could be held, however, David Bush was required to find and serve Serene with a petition. In mid-February 2006, David Bush went to the PSP barracks in Mansfield, Pennsylvania, and requested assistance from PSP Troop F in locating Serene and his three children. At the Mansfield barracks, David Bush spoke with Sergeant Tripp, who informed the plaintiff that he had no rights in view of the PFA order that had been in effect against him. Sergeant Tripp then assigned Trooper Whisner to take a written statement from David Bush. Pennsylvania law requires law enforcement agencies to investigate missing children upon receipt of a report, and to enter missing children into the Commonwealth Law Enforcement Assistance Network ("CLEAN") upon receipt of sufficient identifying information. David Bush's children were not entered into the CLEAN network, however, because Troop F deemed them not to be missing by virtue of the fact that they were with their mother.*fn4 12/22/09 D. Bush Dep. at 12-16; January 7, 2010 Dep. of Joseph Tripp ("1/7/10 Tripp Dep."), Ex. to Pls.' Br. in Opp'n to Defs.' S.J. Br. ("Pls. Opp'n"), at 49-50; January 7, 2010 Dep. of Steven J. Ignatz ("1/7/10 Ignatz Dep."), Ex. to Pls.' Opp'n, at 101-02; see also 18 Pa.C.S. § 2908.

After visiting the Mansfield barracks, David Bush contacted the PSP and inquired into the status of the investigation, but received no further information. Around April of 2006, David Bush contacted his brother, Christopher Bush, a detective at the Newtown Township Police Department, and informed Christopher Bush of the difficulties he was having locating his ex-wife and children. Christopher Bush in turn contacted District Attorney John Cowley on multiple occasions and inquired into the status of the investigation. 12/22/09 D. Bush Dep. at 16; December 22, 2009 Dep. of Christopher Bush ("12/22/09 C. Bush Dep."), Ex. 2 to Defs.' S.J. Br., at 4, 9-12.

On June 23, 2006, David Bush obtained an order from the Court of Common Pleas of Luzerne County, Pennsylvania, granting him primary physical and legal custody of the three children, if their location could be discovered. The order also authorized David Bush to take custody with the assistance of law enforcement and return the children to Pennsylvania. David Bush showed the order to Christopher Bush, and Christopher Bush asked the Chief of Police at the Newtown Township Police Department, Martin Duffy, if he could assist with the search by entering the children into the CLEAN/NCIC*fn5 network. Chief Duffy approved of Christopher Bush's request, and on July 22, 2006, Christopher Bush entered David Bush's children into the CLEAN/NCIC network and generated a report documenting the entry. June 23, 2006, Luzerne County Court of Common Pleas Order, Ex. 4 to Defs.' S.J. Br., ¶ 1; 12/22/09 C. Bush Dep. at 13-16; Incident Investigation Report, Ex. C.Bush-1 to 12/22/09 C. Bush Dep.On August 11, 2006, Sergeant Tripp contacted Christopher Bush to ask whether he was related to David Bush, and whether he had made the CLEAN/NCIC entry. After answering both questions in the affirmative, Christopher Bush asked whether he could share information with Sergeant Tripp, in response to which Tripp laughed and ended the phone conversation. 12/22/09 C. Bush Dep. at 18-19.

In September of 2006, Christopher Bush learned that David Bush's children were living in the Richmond, Virginia, area, and subsequently located the school district where the children were enrolled. Christopher Bush then contacted the Richmond City Police Department and spoke with Detective Lawson. Christopher Bush explained that he was a Newtown Township police officer and that he was in possession of a custody order for his brother's children. Christopher Bush forwarded the June 23, 2006, Luzerne County Court order to the Richmond Police. On October 12, 2006, Christopher Bush contacted David Bush and informed him that the children were in Virginia. On October 13, 2006, David Bush went to Richmond, Virginia, and picked up the children, who had been removed from school by the Richmond Police. They returned to Bucks County, Pennsylvania, the next day. 12/22/09 C. Bush Dep. at 21, 23-28; 12/22/09 D. Bush Dep. at27.

On October 23, 2006, David Bush's ex-wife Serene obtained an order from the Luzerne County Court vacating the June 23, 2006, custody order as improperly granted. The Luzerne County Court noted that the original petition did not contain a basis for jurisdiction, as neither party was a resident of Luzerne County. Further, an ongoing proceeding in Tioga County had not been disclosed to the Court. On or around October 23, 2006, Serene also sought the help of PSP Troop F, to whom David Bush had previously reported the children missing. On the same date, Sergeant Tripp called Christopher Bush and asked if he knew the location of David Bush's children. In response, Christopher Bush asked whether Sergeant Tripp had an order, and Tripp indicated that he did not. Although Christopher Bush knew the location of the children, he did not tell Sergeant Tripp. October 23, 2006, Luzerne County Court of Common Pleas Order, Ex. 5 to the Defs.' S.J. Br., ¶¶ 1-2; 12/22/09 C. Bush Dep. at20.

According to the plaintiffs, the PSP then assisted Serene by entering her children into the CLEAN/NCIC network even though the PSP officers knew the children were with David Bush. In contrast, the PSP had refused to enter the children into the CLEAN/NCIC network under similar circumstances when David Bush previously sought help. The plaintiffs' allegations are not supported by the record. First, the record does not support the contention that the PSP entered the children into the CLEAN/NCIC network. In the deposition of Sergeant Tripp, on which the plaintiffs rely, Tripp reads from a report that he did not prepare, and therefore his testimony is not based on personal knowledge. In addition, the facts in the report from which Sergeant Tripp reads are ambiguous and do not indicate that the PSP ever entered Serene's children into the CLEAN network. See Pls.' Opp'n ¶¶ 19-21; 1/7/10 Tripp Dep. at 51-56.

The record also fails to support the contention that the members of Troop F were aware that the children were with David Bush on the date when Serene sought help. The plaintiffs rely on the deposition of Sergeant Tripp who, as noted above, was reading from a report and not testifying based on personal knowledge. The plaintiffs also cite to the deposition testimony of Sergeant Sean Adams, a police officer from Richmond, Virginia, who originally helped David Bush locate his children. Sergeant Adams testified that he remembered speaking with Sergeant Tripp, but could not recall the date or the content of the conversation.*fn6 May 20, 2010 Dep. of Sergeant Sean Adams ("5/20/10 Adams Dep."), Ex. to Pls.' Opp'n, at 51-52.

On October 25, 2006, David Bush was taken into custody by the FBI and was subsequently sent to Richmond, Virginia. David Bush was held for several days, and was then released on bail following a preliminary hearing. The charges against David Bush were ultimately dropped. After a subsequent hearing in Virginia, Serene was awarded full custody over the children, and at the present time David Bush has neither custody nor visitation rights. 12/22/09 D. D Bush Dep. at 41-42; Tr. of Oral Arg. on Oct. 25, 2010 ("Tr."), at 30.

Christopher Bush's involvement in David Bush's custody dispute ended after his brother's arrest. Sometime after October 23, 2006, the date on which Christopher Bush spoke with Sergeant Tripp, Christopher Bush contacted the PSP to determine the proper procedure for filing a complaint against a PSP officer. On November 19, 2006, Christopher Bush filed a preliminary complaint against Sergeant Tripp. On January 15, 2007, Christopher Bush filed a more detailed written complaint with the Pennsylvania Internal Affairs Division ("IAD") against Sergeant Tripp. The plaintiff complained about the manner in which Sergeant Tripp handled the investigation into the location of David Bush's children, as well as Tripp's demeanor when he communicated with Christopher Bush on the phone. 12/22/09 C. Bush Dep. at 30-32; PSP Use of Force or Complaint, Ex. Hill 1 to April 15, 2010 Dep. of Kenneth Hill ("4/15/10 Hill Dep."), Ex. to Pls.' Opp'n; PSP Complaint Verification, Ex. C.Bush-2 to 12/22/09 C. Bush Dep; 1/7/10 Tripp Dep. at 99-100.

The complaint against Sergeant Tripp was forwarded to Captain Kenneth Hill on January 26, 2007. Captain Hill was responsible for overseeing the operations of the Mansfield Station where Sergeant Tripp served as Station Commander.*fn7

Captain Hill, in turn, assigned Lieutenant Dennis Hile to conduct an investigation into Christopher Bush's complaint, and also requested that the CLEAN Administrative Unit conduct an independent investigation into Christopher Bush's CLEAN/NCIC entries.*fn8 12/22/09 C. Bush Dep. at 58; July 31, 2007, Letter from Captain Kenneth Hill to Christopher Bush, Ex. C-Bush4 to 12/22/09 C. Bush Dep.; ...

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