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Brandon Szalabawka, A Minor, et al v. Officer Jamie Russo

September 28, 2011

BRANDON SZALABAWKA, A MINOR, ET AL., PLAINTIFFS,
v.
OFFICER JAMIE RUSSO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,

MEMORANDUM OPINION

Presently pending before the Court in this federal civil rights action is a motion by the Defendants for summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. For the reasons set forth below, the motion will be granted in part and denied in part.

I. BACKGROUND

At approximately 1:44 a.m. on the morning of September 26, 2007, the Millcreek Township Police Department received a dispatch concerning a home invasion and shots fired at a west-side Millcreek residence. The assailants were described as being two black males wearing hats with the word "police" on them and tshirts with the same lettering. The vehicle in which they fled was described as a white minivan, possibly a Dodge Caravan, heading east toward the City of Erie. Initially, no vehicle plate information was known.

Sergeant Anthony Talarico of the Erie Bureau of Police received the foregoing information and took up pursuit of the vehicle. The white minivan proceeded through the City of Erie at a high rate of speed, disregarding stop signs and stop lights. Because of the high speed at which the vehicle was traveling, Talarico could not get close enough to read the vehicle plate. Another unit occupied by Erie police officers William Goozdich and Richard Romanski heard the dispatch and joined the pursuit. Their unit was nearly struck head-on by the minivan as it continued eastward through the City of Erie.

At approximately 1:55 a.m., Sergeant Talarico lost sight of the vehicle near an alleyway between Ash and Wallace Streets. Prior to losing sight of the vehicle, Talarico was able to determine that the license place started with the letter "G." This information was given out over the air to other police units that had joined in the pursuit.

At 1:56 a.m., one minute after Talarico had lost sight of the van, Erie police officers Jamie Russo and Gabriel Amory located a white Dodge Caravan with a grey bumper, tinted windows, and a license plate beginning with a "G" in the driveway of 655 East 5th Street. Unbeknownst to the officers, this address was the residence of Plaintiffs Maria Arenas-Jordan, her step-son Brandon Szalabawka, and her father Jose Arenas, none of whom had had any involvement in the home invasion or ensuing chase.

At the time Officers Russo and Amory spotted the white Dodge Caravan, it was stationary with the engine running and brake lights on and it was deep in the driveway toward the back yard of the residence. Its sole occupant was Arenas-Jordan (hereinafter, "Maria"), a 22-year old white, Hispanic female who was preparing to leave her house so that she could pick her husband up from work.

Before Maria could leave her driveway, Russo and Amory backed up to block the driveway and approached the minivan on foot. With pistols drawn, they ordered her out of the vehicle and onto the driveway in a prone position. Corporal Todd McLaughlin*fn1

arrived on scene, handcuffed Maria, and placed her in his cruiser which was parked up the street. During this time several other city police officers arrived on scene. One of them was Sergeant Talarico, who remarked in reference to Maria that she was "the retard driving the van."

Maria contends that, in fact, numerous officers present at the time used profanity and abusive language toward her. Among other things, she was allegedly called a "fucking retard" and an "idiot" and was told her to get out of the "fucking car" and lay on the "fucking ground." She claims that, during this time, the officers pointed their firearms at her and that, while being handcuffed, she was told she was going to jail. She informed Corporal McLaughlin that her father, Jose Arenas, owned the house and that she was going to Taco Bell to pick up her husband, David Jordan, who was due to get out of work there at 2:00 a.m.. At no time prior to her confinement in the police car was Maria searched or patted down for weapons, nor was she asked for identification.

While Maria was lying prone on her driveway, Officer Romanski proceeded to the rear of the house and announced over his radio that the door was open. The rear entrance consisted of a sliding glass door with no locking mechanism. The outer screen door to this entrance had been removed from its track and was resting against the right-hand glass door panel. Whether the interior sliding door was in fact open is a matter of dispute. In any event, however, Officers Romanski and Goozdich entered the residence along with Officers Robert Borland, Michael Brown, Geoffrey Filutze, James Bielak, and Steven DeLuca. Outside the house, Officers Luke Yates and Melanie Szoszorek, together with Officers Amory and Russo, took up various positions in the front and back yards.

Once inside the house, Officers DeLuca and Brown cleared the basement area while Officer Borland maintained his position at the rear door area. Officers Goozdich, Bielak, Romanski, and Filutze cleared the second floor. Goozdich and Bielak also cleared the attic, where they found two small children asleep in a curtained-off portion of the attic.

While clearing the second floor, Officer Romanski entered the bedroom of ten-year old Brandon Szalabawka ("Brandon"). What occurred at this point is also a disputed matter. According to the Defendants, Officer Romanski entered Brandon‟s bedroom to determine if any of the assailants were in the room and to determine if Brandon was safe. He required Brandon to show his hands and inquired if he was "all right" and if there was anyone else in the room. Romanski claims that he had his pistol at the ready but did not threaten Brandon or anyone else. According to Brandon, however, he was asleep in his bed when several officers entered the room and one of them ordered him to put his hands in the air. Brandon contends that one officer, presumably Romanski, had his weapon pointed approximately seven or eight inches from the side of his (Brandon‟s) face.

During the officers‟ sweep of the second floor, they also encountered Jose Arenas ("Jose"). Again, the parties dispute the details of this encounter. Defendants claim that Jose argued with the officers concerning their presence but that he was not subjected to any force and was not detained. Plaintiffs deny that Jose argued with the officers. They claim that Jose was awakened by the sound of police officers yelling inside his house and that he came out of his room to ask what was going on. Jose contends that the police officers refused to give him any information and instead told him to "shut up" and that if he did not "shut up now" then he would "be the one going to jail." (Arenas Depo. [27-24] at p. 17.)*fn2

Following their sweep of the house, Officers Bielak and DeLuca exited the residence. At 2:13 a.m., they located a white Plymouth Voyager minivan with a black bumper*fn3 and a license plate beginning with the letter "G" in an alley near the Plaintiffs‟ residence. According to Plaintiffs, this was the very same alley between Ash and Wallace where Talarico had reported losing sight of the vehicle. Inside the van was a police scanner radio, black gloves, and a hat with the word "police" on it. The van was taken into custody by Millcreek police officers and processed. According to one Millcreek police report, this minivan was found to have an "overheated smell" and its hood was "hot to the touch." (See Def.‟s Ex. D [27-5] at p. 2.)

In the meantime, various Erie police officers on scene at 655 East 5th Street had independently concluded that the Plaintiffs‟ Dodge Caravan was not the vehicle involved in the Millcreek incident. After clearing the Plaintiffs‟ house and checking the back yard for footprints, Officer Filutze returned to the front of the residence and felt the hood of the Dodge Caravan. Having determined that the vehicle was not hot and therefore could not have been the minivan involved in the high-speed chase, he left.

Similarly, Officer Peter Dregalla arrived on scene and, according to his own account, stayed for no more than about 30 seconds. He felt the hood of the van and found it to be cold. Dregalla therefore remarked to Officer Russo that the Caravan "was not the van that we were looking for" and left to continue the search. (Dregalla Depo. [27-29] at p. 10, 14.)

Officer Szoszorek was also present on scene when another unidentified officer felt the hood of the van and reported that it was cold. Upon hearing this information, Szoszorek left the scene to continue searching for the suspect vehicle.

Corporal McLaughlin also became aware that the hood of the van was cold. Based on the van‟s temperature and Maria‟s explanation that she was on her way to pick up her husband from work, McLaughlin began to conclude that Maria was not a suspect, and he attempted to convey this information to Talarico.

According to one report, Talarico also felt the hood of the minivan and determined that it was not hot. Given this fact and the fact that he could not smell the vehicle‟s brakes, Talarico concluded that the Dodge Caravan was not the minivan he had been pursuing. By this time, however, Millcreek police units were on their way to the scene and Talarico decided that Maria should remain in the custody of the Erie police pending the Millcreek officers‟ arrival.

Exactly how long Maria remained detained in McLaughlin‟s cruiser is a matter that is disputed by the parties. Defendants claim she was detained for no more than seventeen minutes, from 1:56 a.m. until 2:13 a.m., when the Millcreek police units arrived. Plaintiffs contend that the length of Maria‟s detention is uncertain and may have been an hour or more.

Following these events, Plaintiffs filed this complaint pursuant to 42 U.S.C. §1983. In it, Plaintiffs assert numerous violations of their Fourth Amendment rights. First, it is alleged that Defendants made an unreasonable seizure of Maria Arenas-Jordan by arresting her in the absence of probable cause to believe that she was guilty of a criminal offense. Second, it is alleged that the Defendants conducted unreasonable searches of the Plaintiffs‟ house and Maria‟s purse. Third, it is alleged that the Defendants subjected all three Plaintiffs to excessive force by pointing loaded firearms at each of them and by handcuffing Maria during the course of their investigation.

Defendants have answered the complaint and have filed the pending motion for summary judgment. Plaintiffs have responded to the motion and the matter is ripe for adjudication.

II. STANDARD OF REVIEW

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "A disputed fact is "material‟ if it would affect the outcome of the suit as determined by the substantive law," Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 771 (3d Cir.2009) (citation omitted), and a factual dispute is "genuine," and thus warrants trial, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248--49, 252 (1986). Accordingly, in order for a claim to survive summary judgment, "there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Id. For purposes of Rule 56, we assume that the non-moving party's allegations are true and we give the non-moving party the benefit of the doubt when those allegations conflict with the moving party's claims. Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir.1995).

III. DISCUSSION

Plaintiffs‟ claims are asserted pursuant to 42 U.S.C. § 1983, which affords a private right as against:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.

This statute does not create substantive rights but instead "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).

To prevail under 42 U.S.C. § 1983, a plaintiff must prove that s/he suffered the deprivation of a constitutional or federal rights by a person acting under color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). Here, there is no question that the Defendants were acting under color of state law while on duty as city police officers. The only question is whether, on this record, a reasonable jury could find that a violation of the Plaintiffs‟ federal constitutional rights occurred and, if so, whether the Defendants are ...


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