The opinion of the court was delivered by: William W. Caldwell United States District Judge
On October 5, 2007, plaintiff, Austin T. Scott, and Desiree Minder, had sexual intercourse at his apartment on the campus of The Pennsylvania State University, located in Centre County, Pennsylvania. Based on this encounter, Scott was arrested on a charge of rape and other sexual assault offenses. However, about six months later, the district attorney decided to dismiss the charges. In a prior criminal proceeding in which Minder was also the complaining witness the defendant there had been acquitted of a charge of rape, and the trial court in Scott's case ruled that Scott could enter this result into evidence at his trial. It was after this ruling that the district attorney dismissed the charges, stating that he could no longer prove the case against Scott beyond a reasonable doubt.
Scott then filed this civil-rights action. He named the following defendants, which we group as follows: (1) Centre County;, Michael Madeira, the county's district attorney; and Lance Marshall, an assistant district attorney; (2) The Pennsylvania State University (Penn State); Stephen Shelow, Penn State's director of University Police; Thomas Sowerby, assistant director of the University Police; Matthew Cover, Ryan Rodgers, Dustin Miller, Stephanie L. Brooks, and Christine D. Vile, Penn State police services officers; and (3) Desiree Minder.*fn1
There are eleven claims in the complaint. Scott makes the following federal civil-rights claims against all the individual defendants: false arrest (Count I); malicious prosecution (Count II); and false imprisonment (Count III). He makes a federal claim of "supervisory liability" against certain unnamed supervisory defendants (Count IV), a federal "failure to intervene" claim against certain unnamed non-supervisory defendants (Count V), a federal civil conspiracy claim against all the individual defendants (Count VI), and a federal "governmental liability" claim against Centre County and Penn State (Count VII).*fn2 Plaintiff also makes the following state-law claims against all the individual defendants: a claim under Pa. Const. art. I, § 8, which prohibits unreasonable searches and seizures, the Pennsylvania constitutional counterpart to the Fourth Amendment, U.S. Const. amend. IV (Count VIII)*fn3 ; a claim for false arrest and illegal imprisonment (Count IX)*fn4 ; a claim for malicious prosecution (Count X)*fn5 ; and a claim for civil conspiracy (Count XI).*fn6
Centre County, Madeira, and Marshall filed separate motions to dismiss. While the case was assigned to the late Judge James F. McClure, Jr., these motions were granted, and the moving defendants were dismissed from the case. See Scott v. Marshall, 2010 WL 785282, at *5 (M.D. Pa. Mar. 3, 2010)(McClure, J.).
The case has been transferred to the undersigned, and we are considering two motions for summary judgment, one filed by defendant Desiree Minder, and the other by the "Penn State defendants," Penn State and the individual defendant law-enforcement officers in its employ who investigated Minder's charges.
Under Fed. R. Civ. P. 56, the movant is entitled to summary judgment if it "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). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). The party opposing summary judgment may not rely on statements in briefs, Smith v. Kyler, 295 F. App'x 479, 481 (3d Cir. 2008)(per curiam) (nonprecedential) (quoting Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511-12 (3d Cir. 1994)), but his evidence "'is to be believed, and all justifiable inferences are to be drawn in his favor.'" Colwell v. Rite-Aid Corp., 602 F.3d 495, 501 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
With this standard in mind, the following is the background to this case for summary-judgment purposes, as properly supported by the evidence the parties submitted and their admissions to the opposing parties' statement of material fact.
Scott and Minder were both Penn State students.*fn7 They first met around
August or September 2007. (Doc. 69-2, Scott Dep., CM/ECF p. 6).*fn8 In the early morning hours of October 5, 2007, Minder was with some friends in two bars in State College, Pennsylvania, where Penn State is located. They were first at Tony's Big Easy, where Minder had a couple of mixed drinks made with vodka, leaving her a little intoxicated. (Doc. 69-3 Minder Dep., CM/ECF p. 9). They then went to The Saloon, where sheordered some mixed drinks, again made with vodka. (Id., CM/ECF p. 91). During this time, Scott and Minder exchanged text messages, with Minder texting while she was at The Saloon, "Come get me." (Doc. 65-9, defendant Rodgers' police report, CM/ECF p. 12).
When Scott arrived, Minder met him outside and guided him downstairs to the bar, which was in the basement. (Doc. 69-3, Minder Dep., CM/ECF p. 13). Scott finished her drink for her, (id.), and they left, at around 2:00 a.m., according to one police report. (Doc. 65-8, defendant Cover police report, CM/ECF p. 3). As they were walking in the direction of Scott's apartment, Minder, according to Scott, made the decision to go to his place. (Doc. 69-2, Scott Dep., CM/ECF p. 7). According to Minder, she "agreed to go back to his house," although her "first choice" would have been to go to her own house, but she "was drunk," and he "offered to let [her] crash" at his place, so she "said okay." (Doc. 69-3, Minder Dep., CM/ECF p. 14).
As they were walking to Scott's apartment, Minder told Scott she wanted him "to respect" her. At that time, according to Scott, she conveyed to him, either directly or indirectly, that she did not want to have sex that night. (Doc. 69-2, Scott Dep., CM/ECF p. 7). When they arrived at the apartment, they went directly to his bedroom. (Doc. 60, Minder's statement of facts ¶ 14). On the bed, they started out on their backs, and then moved to lying on their right sides, with Minder's back to Scott's front. (Doc. 69-2, Scott Dep., CM/ECF p. 8). They lay cuddled like this for some thirty minutes, talking about family, when Minder began "thrusting her butt into [Scott's] pelvic area." (Id., CM/ECF pp. 8-9). Scott began "to reciprocate," moving his hand down her leg to her vagina. She pulled him on top of her, and they both started taking off her pants. (Id., CM/ECF p. 12). Minder pulled his arm to signal him to get on top of her. (Id.). They had sex. (Id., CM/ECF p. 13). Afterwards, Minder stayed at the apartment for about thirty minutes. Scott thought they were both trying to sleep, but Minder said she could not sleep there, that she needed to go home. (Id., CM/ECF pp. 16-17). She gave him a hug and kiss, they started talking again, she gave him another hug and a kiss, and then she left. (Id., CM/ECF p. 17).
While she was there, Minder never said anything to indicate she had changed her mind about having sex that night, Scott never asked her if she had changed her mind, nor did he ask her to have sex. (Id., CM/ECF pp. 10-11). However, when she pushed up against him with her butt, he took that "as a hint that she wanted some kind of response." (Id., CM/ECF p. 10). Minder never said no at anytime, and he never punched her anywhere on her body, and not in the kidney. (Id., CM/ECF pp. 14, 19).
After leaving Scott's apartment, Minder called a friend, (doc. 60, Minder's statement of facts ¶ 30), who met her on the street with some other friends. (Id., ¶ 31). At about 4:16 a.m., the Penn State police were called.*fn9 (Doc. 64, Penn State defendants' statement of material facts ¶ 14). Defendants Cover and Miller were sent to investigate. (Id., ¶ 15). Minder told Cover that Scott had raped her. (Doc. 65-8, Cover's Incident Report Supplement, CM/ECF p. 2). She also told him, "It happened to me again," stating that she had been raped two years earlier. (Id.).*fn10
Cover and Miller took Minder to the hospital. (Doc. 64, Penn State
defendants' statement of material facts ¶ 17). Minder was interviewed
by a registered nurse. According to Cover's report, he was there for
the interview and Minder repeated that she had been raped. (Doc. 65-8,
Cover's Incident Report Supplement, CM/ECF pp. 3-4).*fn11
She also said during the interview that she had fallen asleep
on the bed still fully clothed. She awoke with Scott on top of her.
Her jeans had been removed. She told Scott, "No, Please stop." She
attempted to move and turn away, but Scott punched her in the kidney
area, then placed his fingers and then his penis into her vagina. She
went along with it because she was afraid Scott would hurt her. (Doc.
65-8, Cover's Incident Report Supplement, CM/ECF pp. 3-4).
Cover left and the nurse performed a physical examination of Minder. Minder complained of pain in her right flank and vaginal area. (Doc. 64, Penn State defendants' statement of material facts ¶ 21). On physical examination, the nurse found "reddened areas, including in her neck, upper left shoulder and the middle of her back.
Minder also had two ecchymotic areas in her left side flank area in which she had a great deal of tenderness. In addition, Minder had several reddened areas on her front upper right shoulder, her chest and between her breasts. There was another area of ecchymosis on Minder's right thigh." (Id., ¶ 22). There were other physical signs in the genital area. (Id., ¶ 23).
Defendant Brooks arrived at the hospital at around 6:35 a.m. (Id., ¶ 20). Brooks spoke to one of Minder's friends who met Minder that morning after she left the apartment. This friend reported that Minder was hyperventilating and hysterical and complaining of pain in her back. (Id., ¶ 24). Brooks took copies of the notes of the sexual assault exam and the medical records. She asked Minder to come to the police station and discuss the incident in more detail. Minder agreed. (Id., ¶ 25).
In the meantime, at about 6:18 a.m., defendants Sowerby and Vile contacted District Attorney Madeira to tell him about the reported crime. The three made plans to attempt a consensual phone call between Minder and Scott and to obtain a search warrant for Scott's apartment. (Id., ¶ 26). "At approximately 7:45 a.m., District Attorney Madeira and Assistant District Attorney Lance Marshall arrived at Penn State police services. After their arrival, a meeting was held attended by Madeira, Marshall, Sowerby, Brooks, Cover, Miller, Rodgers, Vile and Shelow. At this meeting, it was decided that Minder would be consensualized and that she would attempt to make phone contact with Scott." (Id., ¶ 27).
This meeting ended at about 8:20 a.m. Madeira and Marshall met with Minder about the investigative plan. (Id., ¶¶ 28 and 29). A consensualized phone conversation took place between Minder and Scott. After the conversation, by way of some text messages, they agreed to meet at the Hentzel Union Building (HUB) at noon. This was a pretext for the Penn State police to meet personally with Scott about Minder's allegations. (Id., ¶ 30).
At about 12:40 p.m., Sowerby and Rodgers met Scott at the HUB. Scott talked with them and confirmed that he and Minder had met at The Saloon; that they did not know each other that well; that before the night in question, he had only "hung out" with her once, lunch at a pizza shop; that "while Minder agreed to stay at his place for the night, she told him not to get the wrong impression and that she wanted him to respect her"; that they had sex; and that "it had been clear to him earlier in the evening that Minder did not want to have sex with him." (Id., ¶ 34).
Vile prepared a search warrant application for Scott's apartment, completing it around 11:15 a.m. The affidavit was then approved both by ADA Marshall and ADA Karen Kuebler. A search warrant was obtained at approximately 11:30 a.m. from the Centre County Court of Common Pleas. (Id., ¶ 32). Scott's apartment was searched in the afternoon. (Id., ¶ 36).
"After they conducted their part of the investigation on October 5, 2007 regarding the alleged assault by Scott, Officers Cover, Miller and Vile had very little further involvement in the investigation." (Id., ¶ 37).
"On October 7, 2007, Minder met at the Penn State police station with ADA Marshall and Officer Brooks. Marshall reviewed with Minder the court process. Marshall then left, and Brooks again did a detailed interview of Minder as to the specifics of the sexual assault and the events leading up to that assault. Upon the conclusion of that interview, Marshall returned to the interview room to meet with Minder. He advised Minder that he would be in touch with her once the District Attorney's office and representatives of Penn State police services met on October 11, 2007, to discuss the case further." (Id., ¶ 38).
"During her discussions with Officer Brooks, Minder told Brooks that she had been assaulted at a previous college, that she had been through the criminal process and that it had not ended favorably toward her. Minder also told ADA Marshall about the outcome." (Id., ¶ 39).
"On October 8, 2007, Officer Brooks met with Minder at the police station to take photographs of her injuries as they appeared at that time. Minder still had redness in her back in the area of her kidney, corresponding to the area where she said Scott had punched her. Minder related that her arms were still sore and that she continued to have pain in her back." (Id., ¶ 40).
"On October 9, 2007, Officer Brooks conducted an interview of Nancy Waring, a friend of Minder's who was with her on the evening of October 4, 2007. Waring was asked about the events prior to Minder going to the Saloon. She was also questioned as to anything Minder had told her about the sexual assault. Waring's statements as to what Minder told her about the assault were consistent with the statements Minder had given to Brooks." (Id., ¶ 41).
"In October 2007, it was the policy and practice of Penn State police services that felony charges would not be brought against a suspect without the approval of the office of the Centre County District Attorney." (Id., ¶ 42).
"On October 11, 2007, a meeting was held at Penn State police services to decide whether to move forward with bringing charges against Austin Scott." The meeting was attended by Maderia, Marshall, Sowerby, Shelow, Brooks and Cover. (Id., ¶¶ 43 and 44). "Marshall led the discussion and did the majority of the talking" at the meeting, which dealt with whether charges should be brought. (Id., ¶ 45). At the conclusion of the meeting, "it was unanimously determined that criminal charges would be filed against ...