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John Paul Gomez v. Officer James Markley

June 28, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer


Pending before the Court are two motions filed by pro se plaintiff John Paul Gomez ("Gomez"). He moves for judgment notwithstanding the verdict or, in the alternative, for a new trial. (Docket No. [161]). Both were filed with the Court on April 21, 2011. Defendant, Officer James Markley ("Markley"), opposes these motions. (See Docket Nos. [166], [167]). For the following reasons, Gomez‟s motions (Docket No. [161]) are DENIED.


The factual background of this case is presented in great detail in this Court‟s memorandum opinion on Defendant‟s motion for summary judgment. (Docket No. [51], 1-8). See also Gomez v. Markley, 385 Fed. App‟x 79, 80-81 (3d Cir. 2010) (unpublished) (presenting factual background of the case) (hereinafter, "Gomez"). Due to the detailed history contained in these documents, the Court will only briefly summarize the facts as relevant to the currently pending motions.

In the evening of March 26, 2007, Markley pulled over Gomez‟s car. (Docket No. [51] at2). Markley informed Gomez that the car‟s inspection stickers were inadequate. (Id.). Gomez provided Markley with his license, registration and insurance information. (Id.). After reviewing these documents, Markley returned briefly to his patrol car. (Id.). Markley then returned to Gomez‟s vehicle and informed Gomez that his license was suspended and his registration was expired. (Id.).

At this point, Markley requested that Gomez exit his vehicle, whereupon Markley proceeded to search Gomez‟s person. (Id. at 2). Markley found no weapons as a result of this search. (Docket No. [23]-1 at ¶ 18). This constitutes the "first" search performed by Markley, and it was construed by this Court as a Terry search.*fn1 (Docket No. [51] at 15).

After performing the Terry search, Markley returned to his patrol car briefly. Gomez, 385 Fed. App‟x at 81. Markley once again returned to Gomez‟s vehicle and ordered Gomez out of the car. Id. Markley then requested Gomez‟s consent to search the vehicle. Id. Gomez asserts that he became "nervous about Markley‟s intentions," and thus refused to give his consent to Markley‟s search. Id.

At this point, the facts are disputed. Markley claims that he observed a marijuana seed on Gomez‟s driver‟s seat. (Docket No. [23] at ¶ 17). Gomez denies having any drugs in his car. (Id. at ¶ 18). Markley testified at trial that he did not actually engage in the second search. (See Trial Transcript ("T.T.") 2/1/11 at 80 (the Court observed that "Markley testified that the [contraband] search never happened.")). Gomez, for his part, claims that Markley began making racially charged statements and that Markley falsely claims to have found drugs in the car. Gomez maintains that Markley would not show Gomez what he found, despite Gomez‟s inquiries. Gomez, 385 Fed. App‟x at 81. This search, to the extent that it happened, constitutes the "second" alleged search performed by Markley. (See Docket No. [51] at 15).

The Court of Appeals felt that there were sufficient questions of fact related to this second search to overcome Markley‟s motion for summary judgment. Gomez, 385 Fed. App‟x at 83. Gomez himself expressly acknowledged the fact that there was a question as to whether the second search even occurred. At trial, he stated that the actual occurrence of the second search was "my word against an officer‟s word." T.T. 2/1/11 at 169. The jury found that Gomez failed to establish by a preponderance of the evidence that Markley had performed the second search. T.T. 2/2/11 at 87-88. Thus, the factual dispute recognized by the Court of Appeals was resolved in favor of Markley at trial.

Finally, Markley informed Gomez that his car was to be impounded and handed Gomez an inventory form to sign. Gomez, 385 Fed. App‟x at 81. The car was towed, and an inventory search was performed by Markley. (Docket No. [51] at 24). This constitutes the "third" search for which Gomez claimed a constitutional violation of his Fourth Amendment rights.


After Gomez filed his Complaint on July 5, 2007, (see Docket No. [5]), Markley filed a motion to dismiss in the form of summary judgment on November 5, 2007. (See Docket No. [22]). Gomez then filed a cross-motion for summary judgment on February 19, 2008, (Docket No. [33]), and an amended cross-motion for summary judgment on March 18, 2008. (Docket No. [42]). In an opinion dated July 28, 2008, this Court denied Gomez‟s motion and granted Markley‟s motion in full. (See Docket No. [51]).

With respect to Gomez‟s claims of unconstitutional search and seizure, this Court found that there were three possible searches. (Id. at 15). The first, as mentioned above, constituted a Terry search. (Id.). The second, according to this Court, was a search for contraband, "to the extent that it happened." (Id.)(emphasis added). The third was an inventory search. (Id.) This Court granted summary judgment to Markley with respect to all three searches. (Id. at 16).

The Court of Appeals read Gomez‟s challenge on appeal as limited to the second and third searches. Gomez, 385 Fed. App‟x at 82 n.1 ("We do not understand Gomez to challenge the first search."). The Court of Appeals concluded that this Court had appropriately granted summary judgment with respect to the third search. Id.

However, the Court of Appeals did take issue with this Court‟s granting Markley summary judgment as to the second (contraband) search. Id. at 5. The Court of Appeals observed that several facts were in dispute and, if they were viewed "in the light most favorable to Gomez," they would not support a finding of probable cause. Id. at 7. At no point did the Court of Appeals conclude that the second search had occurred, or that Markley lacked probable cause. See generally Gomez, 385 Fed. App‟x 79.

After the Court of Appeals remanded the case "for further proceedings consistent with [its] opinion" on August 9, 2010, id. at 8, this Court, in accord with that mandate, proceeded to trial on January 31, 2011. (See Docket No. [112] (scheduling trial for Jan. 31, 2011)). Prior to trial, the parties reached a stipulation that the Court and Gomez referred to in trial. See T.T. 1/31/2011 at 21, 28).*fn2 Trial ended on February 2, 2011,*fn3 whereupon the jury concluded that Markley had not conducted the alleged second search. (See Docket No. [142]). Because the only remaining issues before this Court were whether that search had occurred, and if it had, whether Markley had probable cause to perform that search, judgment was entered in favor of Markley that same day. (See Docket No. [143]).

At the end of the trial, Gomez orally moved for judgment notwithstanding the verdict. T.T. 2/2/2011 at 92. Gomez then filed a written motion with the Court on February 7, 2011. (See Docket No. [145]). After Gomez failed to submit his share of the fees for trial transcripts, (see Docket No. [144]), the Court issued an Order on March 9, 2011 requiring Gomez to show good cause for his failure to comply with the Court‟s Order. (See Docket No. [146]). After Gomez responded to the Show Cause Order, (see Docket No. [147]), the Court scheduled a hearing regarding same. (See Docket No. [148]). After Gomez failed to attend the hearing due to claimed car trouble, (see Docket No. [151]), the hearing was ...

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