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Gunser Verdier v. Darby Borough

June 20, 2011

GUNSER VERDIER
v.
DARBY BOROUGH, ET AL.



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

MEMORANDUM RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. Introduction

This action arises out of the detention of Plaintiff Gunser Verdier during a misfortunate meal break at night on January 31, 2008, by police officers of Darby Borough, Pennsylvania. Plaintiff filed this action for money damages pursuant to 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments of the United States Constitution, and Pennsylvania common law, against Defendants Darby Borough, Officer Claude Simpkins ("Simpkins"), Officer Pete Ray ("Ray"), Officer Brian Evans ("Evans"), and Detective Brian Pitts ("Pitts").*fn1 In his Complaint filed January 28, 2010 (ECF No. 1), Plaintiff asserted claims against Darby Borough for illegal seizure (Count I) and illegal search (Count II), both of which Plaintiff has since agreed to dismiss.*fn2 Plaintiff also raised claims against Simpkins, Ray, Evans, and Pitts (collectively, "Defendants" or "the Officers") for deprivation of Plaintiff's constitutional rights under the Fourth and Fourteenth Amendments (Count III), including his right to be secure in his person and property, his right to be free from excessive use of force, and his procedural and substantive due process rights. Plaintiff also set forth a claim against Pitts for supervisory liability (Count IV), which he has withdrawn.*fn3 Finally, Plaintiff brought common law claims against all of the Officers for assault (Count V) and battery (Count VI), and a claim against Simpkins, Evans, and Pitts for false imprisonment (Count VII).

Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 19) and Revised Memorandum of Law (ECF No. 20) on the remaining four counts, Counts III, V, VI, and VI. Following a careful review of the record, and viewing the evidence in the light most favorable to Plaintiff, the Court will grant in part and deny in part Defendants' Motion for Summary Judgment. Specifically, the Court will grant the motion for summary judgment as to all claims against Simpkins and Pitts. The Court will deny the motion for summary judgment as to the excessive force (Count III), assault (Count V), and battery (Count VI) claims against Evans, and grant the motion as to all other claims against Evans. The Court will deny the motion for summary judgment as to the claim for unlawful search of Plaintiff's car against Ray (Count III), and grant the motion as to all other claims against Ray.

II. Factual and Procedural History

The Court sets forth the events giving rise to this action in light of its obligation under Fed. R. Civ. P. 56 to consider the facts in the light most favorable to Plaintiff. The Court also provides the Officers' accounts to the extent they raise additional relevant facts and genuine disputes of material fact that prevent resolution of the claims at the summary judgment stage.

A. Plaintiff's Account

On the evening of January 31, 2008, Plaintiff Gunser Verdier was working as a fleet service agent for US Airways at the Philadelphia airport. Verdier Dep. 9:17-10:17; 21:14-18, Aug. 5, 2010 (Ex. D-4).*fn4 During his lunch break, Plaintiff drove to Pizza Paradise on Wycombe Avenue in Yeadon and bought a sandwich. Id. at 21:24-22:21. Plaintiff pulled over on the 1300 block of Wycombe Avenue, approximately half a mile to a mile from Pizza Paradise, to eat his sandwich before returning to work at the airport. Id. at 22:22-23:12. Plaintiff sat alone in his blue '94 Honda Civic, eating his sandwich, at approximately 9:30 p.m. Id. at 21:14-18; 23:13-18.

Around that time, Officer Simpkins pulled up in a marked SUV behind Plaintiff's vehicle, approached Plaintiff's car on the driver's side, and asked for Plaintiff's license and registration. Id. at 23:19-24:9. *fn5 Plaintiff asked two or three times, "what did I do," and Simpkins persisted in requesting the identification. Id. at 23:19-24:17. Simpkins, who is black, was the only officer on the scene at that time. Id. at 24:16-25. Plaintiff gave Simpkins his driver's license and reached above the visor to get his registration and insurance. Id. at 25:2-15. Simpkins shined his flashlight into the car and asked about the badge hanging around the rearview mirror. Id. at 25:2-15. Plaintiff had a badge on a metal strand from Plaintiff's previous job as a security guard for Leonard Security Company, which Plaintiff had bought at a uniform equipment store at his employer's recommendation. Id. at 13:5-14:23; 18:25-19:22. Plaintiff told Simpkins that he was a certified security officer and showed the police officer his Act 235 card, which identified Plaintiff as a security guard with lethal weapons training (the "identification card"). Id. at 13:5-10; 15:20-16:5; 25:16-22.

Simpkins told Plaintiff to put his hands on the car window, and Plaintiff put his hands on the window or door. Id. at 26:12-27:8. Other officers arrived on the scene, an officer opened the car door, and Plaintiff was dragged out of the car and placed against the vehicle near the rear wheel. Id. at 27:9-28:6. Plaintiff was on his feet, laying against the car with his forehand and his hands on the car. Id. at 28:7-29:9. Plaintiff did not know who removed him from the car and could not turn to see who placed him against the car, but thought only one officer did so. Id. at 29:10-17; 30:12-22. Plaintiff was asked if he had a gun, to which he responded that he had a gun at home. Id. at 30:23-31:10. An officer patted down Plaintiff, taking his wallet and putting it on top of the car roof, and taking items like change from his pockets and putting them on the ground. Id. at 31:17-32:10. The officers took Plaintiff from the car with force, shook him hard and held him down against the car for five or ten minutes. Id. at 32:14-33:14. Plaintiff heard somebody playing with "some type of metal" and the officers saying that if Plaintiff made a move, "you can do anything you want to him." Id. at 32:21-33:5; 34:12-35:12. Plaintiff was not facing the officers and never saw anyone with a gun, baton or Taser. Id. at 35:13-25. One officer, who was white, searched "all over" Plaintiff's car. Id. at 30:23-31:10.

Detective Pitts, the last officer to talk to Plaintiff, did not touch Plaintiff. Id. at 37:2-18.

Pitts took Plaintiff's badge and identification card. Id. at 37:19-25.*fn6 Plaintiff was told that the police were taking his badge and identification card and that if he "obtained employment in the security field, [he] should come to them with confirmation of [his] employment in order for them to return" the property. Pl.'s Statement at 2. Sometime after the incident, Plaintiff and his attorney went to the Darby Borough Police Department to retrieve his badge and identification card. Id. at 39:24-40:13. Lieutenant Guy informed them that the police were investigating and they could not return the property. Id. at 40:25-41:14. In June 2008, the badge and identification card were returned after Plaintiff's attorney contacted the police department. Id. at 39:21-42:18.

Between February 19, 2008 and July 15, 2008, Plaintiff was treated for nightmares relating to his detention. Id. at 45:23-48:21. Plaintiff has not had nightmares since concluding treatment in July 2008. Id. at 48:22-25.

B. The Officers' Accounts

1. Officer Simpkins

Prior to his encounter with Plaintiff, Simpkins was sitting in his vehicle at the cross street of Wycombe Avenue and MacDade Boulevard, near a gas station and a Chinese store, when a man and a woman knocked on his car window. Simpkins Dep. 6:22-24; 8:6-9:16, Dec. 17, 2010 (Ex. to Defs.' Revised Mem. of Law). The two individuals told Simpkins that they were uncomfortable and concerned because a black male was sitting in a dark-colored, small vehicle in the middle of Wycombe Avenue in front of their residence for several hours, and was speaking to passersby. Id. at 6:11-7:11; 9:7-24; 29:6-30:7. Simpkins did not know the two individuals. Id. at 29:6-30:7. Simpkins drove down Wycombe Avenue, pulled behind the vehicle in question, and observed an African-American male eating a sandwich in the driver's seat of the parked car, and a badge hanging from the rear view mirror. Id. at 10:12-11:8. Simpkins did not observe the driver speaking to anyone or using any surveillance equipment. Id. at 12:2-10. Plaintiff was in a residential neighborhood where vehicles regularly parked on the street. Id. at 27:24-28:7.

Simpkins double-parked, because there were no spots behind Plaintiff, activated his safety siren, went to Plaintiff's driver's side window and asked for identification, and Plaintiff rolled down his window. Id. at 12:25-13:23. Simpkins observed a male in the car wearing an airport jumpsuit, a sandwich and maybe a beverage on the passenger seat, and a badge hanging from the rearview mirror, on which Simpkins could see numbers. Id. at 13:24-14:10; 15:17-24. Simpkins asked Plaintiff why he was sitting there and if he lived in the area, to which Plaintiff responded that he was eating his sandwich and he lived around the corner. Id. at 14:21-15:7; 27:12-23. Simpkins further testified that Plaintiff told him he was a police officer at the airport, and that Plaintiff said he was sitting in his car for an hour or two. Id. at 20:11-23; 26:4-19.

Simpkins testified that other officers arrived and talked to Plaintiff but there was a communication barrier when Evans asked him to exit the vehicle. Id. at 18:3-19:9. Plaintiff refused to exit, and Evans removed Plaintiff from the car. Id. at 18:14-19:17. Simpkins testified he may have used his flashlight to see inside the vehicle. Id. at 22:12-16. Simpkins said he believed the vehicle was searched by Officer Evans, but he could not recall if the entire vehicle was searched. Id. at 23:23-24:9. Simpkins had no contact with Plaintiff once Plaintiff was removed from the vehicle. Id. at 28:15-18.*fn7

2. Officer Evans

Evans responded to a radio call and was the second officer to arrive at the scene, where he saw Simpkins and a person seated in a vehicle, with a badge similar to a Philadelphia Police badge hanging from the rearview mirror. Evans Dep. 7:7-8:9; 11:16-21, Nov. 15, 2010 (Ex. D-6). Evans testified that the person seated in the parked vehicle was suspicious because he was observing people and a resident had complained, and because there was a badge in his window, which could indicate a subject impersonating a police officer. Id. at 8:10-10:22. Evans observed Simpkins requesting Plaintiff's license, registration and insurance, and Plaintiff not responding. Id. at 13:7-15. Evans requested that Plaintiff exit the vehicle two times, and Plaintiff refused. Id. at 13:23-14:16. Evans then opened the door, put Plaintiff's left hand on his left shoulder, removed him from the vehicle, escorted him to the front of the vehicle, and advised him to put his hands on the hood. Id. at 14:17-15:15. Evans conducted a patdown of Plaintiff for weapons and found none. Id. at 15:16-16:11. Plaintiff turned back around facing the officers while they checked for outstanding warrants. Id. at 16:12-20. Evans had no further contact with Plaintiff. Id. at 15:18-23.

Evans further testified that after Plaintiff produced his Act 235 card, a plain view search of the interior of the car, including the driver's side, passenger side, and rear, was conducted. Id. at 18:9-19:18. Evans did not enter the car nor did he know if another Officer did so. Id. at 19:19-20:4.

3. Officer Ray

Ray was the third officer to arrive on the scene, where he saw Plaintiff standing outside of his car with Simpkins and Evans. Ray Dep., 7:12-22, Nov. 15, 2010 (Ex. D-5). After Evans advised Ray of what was happening, Evans called Pitts to investigate the badge. Id. at 8:2-9:3. Ray neither had physical contact with Plaintiff nor saw another Officer have physical contact with Plaintiff. Id. at 9:19-24. Ray neither searched the vehicle nor saw another Officer search the vehicle. Id. at 10:14-19.

4. Detective Pitts

Pitts responded to a call to assist on a vehicle stop and arrived to see Ray, Simpkins, and Evans talking to Plaintiff outside of Plaintiff's vehicle. Pitts Dep. 3:22-4:19, Dec. 17, 2010 (Ex. to Defs.' Revised Mem. of Law). Pitts was the highest-ranking Officer of the four Defendants. Id. at 7:9-12. Pitts was not a supervisor of the patrol unit. Id. at 7:4-8. Pitts testified that Simpkins asked him if they should seize the badge, and Pitts agreed. Id. at 7:15-22. Three weeks after the incident, Pitts told Lieutenant Guy, who was investigating the incident, that the police received no information regarding anyone impersonating a police officer by using Plaintiff's badge, and there was no reason to hold the badge. Id. at 17:22-18:8.

C. Procedural History

Defendants filed their Motion for Summary Judgment (ECF No. 19) on December 22, 2010, and revised Memorandum of Law (ECF No. 20) on December 29, 2010. Plaintiff filed his Response in Opposition on January 24, 2011 (ECF No. 23). The Court held oral argument on the motion on May 16, 2011. At oral argument, Plaintiff's counsel clarified that all claims against the individual officers were brought in their individual capacity; that Officer Evans asked Plaintiff to get out of the car and forcibly removed Plaintiff from the car; and that Officer Ray searched the car. The Court invited Plaintiff to send a letter clarifying any of his claims in light of oral argument. Plaintiff withdrew Count IV in his counsel's letter dated May 23, 2011.

III. The Parties' Contentions

A. Defendants' Contentions

Defendants argue that they are entitled to summary judgment on all of Plaintiff's claims. Defendants contend that the Officers did not use unreasonable force against Plaintiff. The only Defendant who used any degree of force was Evans, whose removal of Plaintiff from the vehicle was reasonable in light of the circumstances. Furthermore, Plaintiff's assault and battery claims should be dismissed in light of Plaintiff's statements that no officer threatened Plaintiff, the only touching of Plaintiff was his removal from the vehicle, and Plaintiff suffered no physical injury.

Defendants contend that the stop and fourteen-minute detention of Plaintiff was lawful because they visually searched Plaintiff's car, and confiscated Plaintiff's badge and identification card pending investigation. The Officers contend they lawfully detained Plaintiff on a "Terry stop" and removed Plaintiff from the vehicle after observing the security badge. Defendants also argue that Plaintiff cannot establish a due process claim because his specific claims arise under the Fourth Amendment. Lastly, the Officers argue that even if Plaintiff's constitutional rights were violated, they are entitled to qualified immunity as a matter of law with respect to all federal claims.

B. Plaintiff's Contentions

First, Plaintiff contends that Officer Simpkins did not have the requisite reasonable suspicion to detain Plaintiff, based on an anonymous tip that did not report criminal activity, was not ...


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