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Brian White v. Jack Brommer

August 17, 2011

BRIAN WHITE, PLAINTIFF
v.
JACK BROMMER, BOROUGH OF COLUMBIA AND MATTHEW LEDDY, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on Motion of Defendants for Summary Judgment filed April 7, 2011, and Plaintiff's Motion for Summary Judgment filed April 14, 2011.

For the following reasons, I grant defendants' motion and deny plaintiff's. I conclude that there are no genuine issues of material fact that would preclude granting summary judgment in defendants' favor on plaintiff's claims for unconstitutional seizure, malicious prosecution, violation of right to contract, violation of equal protection, tortious interference with a contractual relationship, defamation, or the Monell *fn1 claim against the Borough of Columbia.

JURISDICTION

Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff brings claims under 42 U.S.C. §§ 1981 and 1983. This court also properly has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over plaintiff's state law claims, which are part of the same case or controversy.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Lancaster County, Pennsylvania, which is located in this judicial district.

PROCEDURAL HISTORY

Plaintiff initiated this action by filing a six-count Complaint on September 24, 2009. Defendants filed a partial motion to dismiss on November 19, 2009. By Order and Opinion filed September 30, 2010, I denied the motion in part and granted it in part, without prejudice for the plaintiff to re-plead with an amended complaint.

On October 22, 2010, plaintiff filed a six-count Amended Complaint. Count One alleges unconstitutional seizure pursuant to 42 U.S.C. § 1983, in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Count Two alleges malicious prosecution in violation of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Count Three alleges violations of equal protection and right to contract pursuant to 42 U.S.C. §§ 1981 and 1983. Counts Four, Five and Six are Pennsylvania state law claims for intentional infliction of emotional distress, tortious interference with a contractual relationship and defamation, respectively.

On April 7, 2011, the Motion of Defendants for Summary Judgment was filed, together with Defendants' Brief in Support of Their Motion for Summary Judgment and Defendants' Statement of Undisputed Material Facts. Plaintiff's Brief in Response to Defendants' Motion for Summary Judgment was filed April 28, 2011.

On April 14, 2011, Plaintiff's Motion for Summary Judgment was filed, together with Plaintiff's Memorandum of Law in Support of His Motion for Summary Judgment. Defendants' Brief in Opposition to Plaintiff's Motion for Summary Judgment and Defendants' Response to Plaintiff's Material Facts for Summary Judgment were filed on May 4, 2011.

STANDARD OF REVIEW

In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000).

Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings, but rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).

FACTS

Based upon the pleadings, record papers, exhibits, and defendants' uncontested concise statement of facts, the pertinent facts are as follows. *fn2

Beginning in March 2009, plaintiff Brian White was employed as a doorman and security guard each Thursday, Friday and Saturday night at the Riverview Bar & Grill, in Columbia Borough, Lancaster County, Pennsylvania. *fn3 On Sunday, May 24, 2009 at approximately 2:00 p.m., plaintiff, along with his friend, Barry Funk, arrived at the Riverview Bar. *fn4 Plaintiff was not working that day. He and his friend were there as patrons, and sat at the bar. *fn5 The two men evenly split three pitchers of beer. *fn6

Two other patrons sitting at the bar that evening were Darryl Leese and Charles Messersmith. *fn7 Among the other bar patrons that night was a woman, Nicole Shireman, who was celebrating her 21 st birthday with her boyfriend. *fn8

Plaintiff believed that Mr. Leese or Mr. Messersmith was harassing or upsetting Ms. Shireman. *fn9 The bartender that evening, Tammy Caplinger, told plaintiff that he was mistaken and that neither man was harassing the girl. *fn10 Plaintiff did not listen to Ms. Caplinger.

At approximately 7:30 p.m. plaintiff approached the area of the bar where both men were seated to stop the harassment which he believed was taking place. He pushed Mr. Leese to the ground. *fn11 When Mr. Leese stood up, plaintiff pushed him to the ground again. *fn12 Mr. Leese never hit or touched Mr. White. *fn13

The bartender, Ms. Caplinger, then told plaintiff to leave the bar. *fn14 She called the "911" emergency line and told the operator that "Brian White flipped out and knocked a guy off the bar stool." *fn15 Mr. Messersmith also called 911. *fn16 Plaintiff left the bar on foot, heading home. *fn17

As a result of the 911 calls, Borough of Columbia police officers were dispatched to the Riverview Bar & Grill. *fn18

Three officers, Sergeant Jack Brommer, Officer Matthew Leddy and Officer Brent Keyser, were on duty that evening. *fn19 All three were dealing with a separate matter at the time the 911 call center dispatched them to the Riverview Bar & Grill. *fn20

The radio transmissions from the 911 Center were:

(1) "Possible fight in progress, 401 South Second Street, Riverview Bar and Grill. There was a lot of yelling on the 9-1-1 call. No one would answer the 9-1-1 operator and the line disconnected";

(2) "Units going to the Riverview Bar in Columbia Borough. Bartender called back in, stated there was a male by the name of Ryan[sic] there. He's possibly outside. He's getting ready to leave wearing a white shirt and shorts. Unknown if he is still outside";

(3) "We got another call from there. It's an assault that happened. It's a black guy in a white T-shirt about 5 foot 8 walking on Lawrence Street, apparently assaulted someone inside the bar"; and

(4) "I'm not sure if Ryan in a white T-shirt and shorts is the same as the black male on Lawrence." *fn21

When Sergeant Brommer arrived at the bar, he talked to the bartender. She told him that plaintiff had pushed Mr. Leese off the bar stool, and that plaintiff had left the bar. *fn22

Sergeant Brommer also spoke to Mr. Leese and Mr. Messersmith, both of whom also described plaintiff pushing Mr. Leese. *fn23

All three witnesses reported to Sergeant Brommer that plaintiff believed Mr. Leese or Mr. Messersmith had made a comment to the woman and tried to follow her into the bathroom. *fn24

All three also told Sergeant Brommer that plaintiff was mistaken, and that no one had harassed Ms. Shireman. *fn25

Sergeant Brommer also spoke to Ms. Shireman, who was upset, but he obtained no written statement from her or her boyfriend. *fn26

Sergeant Brommer then transmitted to units over the County-wide radio channel, including Officer Leddy, that the suspect is Brian White, who resides on Cherry Street. *fn27

At this point, the facts become much less clear. Officer Leddy stated in his deposition that Sergeant Brommer directed him to arrest plaintiff for suspicion of assault, and that the arrest was Sergeant Brommer's decision. *fn28 Officer Leddy said that Sergeant Brommer told him that the man assaulted wished to press charges, and that Sergeant Brommer told Officer Leddy that if he ran across plaintiff he should be placed in custody. *fn29

Sergeant Brommer, on the other hand, stated in his deposition that he never told anyone to arrest plaintiff and that the decision was entirely that of Officer Leddy. *fn30 Sergeant Brommer also testified at his deposition that Officer Leddy arrested plaintiff for public drunkenness, and that the arrest was not at that time related to the incident at the bar. *fn31

The difference between the deposition testimony of Sergeant Brommer and Officer Leddy on whether or not Sergeant Brommer told Officer Leddy to arrest plaintiff is not material to the decision here.

The degree of intoxication exhibited by plaintiff is also in dispute. Officer Leddy approached plaintiff as he was walking on Fifth Street. *fn32 Officer Leddy said that plaintiff appeared angry and agitated, and used profanity. *fn33 According to Officer Leddy, plaintiff was "clearly intoxicated; displaying glassy bloodshot eyes, slurred speech and a strong odor of intoxicated [sic] beverage emanating from his breath." *fn34

Officer Leddy wrote in his police report:

I advised White that I was attempting to determine what happened at the bar, but he again insisted that I arrest him. Due to his obvious level of intoxication and distinct possibility that he would be a danger to himself or others or annoyance of others, I placed White under arrest and handcuffed him. *fn35

Officer Leddy said that he placed plaintiff in handcuffs for the safety of both White and himself. This was based on plaintiff's level of agitation, his use of expletives, together with the information that plaintiff had just been involved in assaulting someone. *fn36 Officer Leddy testified that he wanted to lessen the chance of Mr. White attempting to assault him, or trying to break a window while being transported in the police car. *fn37

Plaintiff, however, denied being drunk or even "buzzed," and says he used no expletives in speaking with Officer Leddy. *fn38 Plaintiff testified in his deposition that when approached by Officer Leddy, he merely put his hands out in front of him and said "do what you have to do." *fn39

Officer Keyser radioed the communication center that plaintiff was in custody. *fn40 Sergeant Brommer requested Officer Leddy to bring plaintiff back to the Riverview Bar, which he did. *fn41 Officer Leddy next transported plaintiff from the bar to the police station. *fn42

Once at the station, plaintiff admitted that he was involved in the altercation at the bar. He claimed that he became involved because Mr. Leese and Mr. Messersmith were making rude comments to the woman. *fn43 Plaintiff further admitted having consumed alcohol, though he denied being drunk. *fn44

Sergeant Brommer issued plaintiff two non-traffic citations for Disorderly Conduct and Public Drunkenness. *fn45 In keeping with police procedure that an intoxicated individual must be released to a sober adult, remain at the station until sober, or driven home, Officer Leddy drove plaintiff home after about 25 minutes in the police station. *fn46
Ms. Caplinger, the bartender, notified Lloyd Warner, the manager of the Riverview Bar, about the incident. *fn47 Bob Marrow, the owner of the bar, made the decision to terminate plaintiff from his employment at the Riverview Bar because of plaintiff's involvement in the May 24, 2009 incident. *fn48

Plaintiff testified that he does not know what, if anything, was said by Sergeant Brommer to Mr. Marrow regarding plaintiff's employment at the Riverview Bar. *fn49

Plaintiff has not sought any medical treatment relating to the incident on May 24, 2009. *fn50 Furthermore, he has experienced no mental or physical symptoms relating to the incident or the termination of his job at the Riverview Bar.*fn51

Columbia Borough requires all civilians making complaints against police officers to complete and notarize a civilian complaint form. *fn52 The department maintains written policies, but does not have a specific "policy" regarding police officers contacting an arrestee's employer. *fn53 There is a written policy regarding warrantless arrests which mirrors the Pennsylvania statute regarding warrantless arrests. *fn54

Columbia Borough police officers receive annual training provided by the Pennsylvania Municipal Police Officers' Education and Training Commission, including Anti-discrimination training. *fn55

At a hearing before local Magisterial District Judge Robert A. Herman in Columbia, Lancaster County, Pennsylvania, on June 30, 2009, plaintiff was found not guilty on the charges of disorderly conduct and public drunkenness. *fn56

CONTENTIONS OF THE PARTIES

Defendants' Contentions

Defendants contend that they are entitled to summary judgment on each claim asserted by plaintiff Brian White.

Initially, defendants contend that they are entitled to summary judgment on plaintiff's claim for unconstitutional seizure because probable cause existed to arrest him. They contend that, based on the undisputed facts known to the officers at the time of the arrest, probable cause existed to arrest plaintiff for disorderly conduct, public drunkenness, harassment, and simple assault.

Next, defendants assert that they are entitled to summary judgment on plaintiff's claim of malicious prosecution for the same reason; specifically, that probable cause clearly existed at the time of plaintiff's arrest, based on facts not in dispute.

Defendants argue that they are entitled to summary judgment on plaintiff's claim for intentional discrimination regarding plaintiff's claim for violation of his right to contract and violation of equal protection pursuant to 42 U.S.C. §§ 1981 and 1983. Regarding the right to contract claims, defendants contend that plaintiff has presented no evidence which suggests that Sergeant Brommer interfered with his employment, other than what he initially averred in his Amended Complaint.

As to plaintiff's equal protection claim, defendants argue that there are no facts in the record to suggest that plaintiff was treated differently than similarly situated people regarding his arrest. Rather, plaintiff was arrested because he was the only person who committed any violations.

Defendants further contend that even if the court were to find that material facts exist concerning whether or not defendants violated plaintiff's constitutional rights, defendants Brommer and Leddy are entitled to summary judgment because any mistakes made in arresting plaintiff were reasonable. Therefore, they are entitled to qualified immunity, and a grant of summary judgment is proper.

Next, defendants argue that they are entitled to summary judgment on plaintiff's claim for intentional infliction of emotional distress because plaintiff has failed to produce any evidence of sufficiently outrageous behavior on the part of defendants. In addition, plaintiff has not sought any medical treatment resulting from the May 24, 2009 incident.

Moreover, defendants seek summary judgment on plaintiff's claim for tortious interference with a contractual relationship on the same grounds as the claim for discrimination regarding his right to contract. Specifically, they contend that plaintiff has failed to produce any evidence in support of his averment that Sergeant Brommer contacted Bob Marrow, owner of the Riverview Bar, and told him to fire plaintiff from his position as a doorman and security guard.

Defendants assert that they are entitled to summary judgment on plaintiff's claim for defamation. Defendants argue that summary judgment is proper on this claim because plaintiff failed to produce any evidence to support his assertion that Sergeant Brommer ...


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