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Paul Surine v. State Police Emergency Response Team; Nicholas Madigan; Michael

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 19, 2012

PAUL SURINE,
PLAINTIFF
v.
STATE POLICE EMERGENCY RESPONSE TEAM; NICHOLAS MADIGAN; MICHAEL CLEGG; CHRISTOPHER WHEELER; SCOTT HENRY; MIKE SNYDER; UNKNOWN CLARK; UNKNOWN FRIZT; UNKNOWN BEDELL; UNKNOWN DIAZ DEFENDANTS

The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a civil rights action filed by pro se plaintiff Paul Surine ("Surine"). Presently before the court is the motion (Doc. 109) for summary judgment filed by defendants Nicholas Madigan, Michael Clegg, Christopher Wheeler, Scott Henry, and Bedell (the "PSP troopers") pursuant to Rule 56 of the Federal Rules of Civil Procedure. The court will also address sua sponte whether the other remaining defendants-the State Police Emergency Response Team, Mike Snyder, Clark, Fritz, and Diaz (the "other remaining defendants")-are entitled to summary judgment on Surine's claims.*fn1 For the reasons that follow, the court will grant the PSP Troopers' motion for summary judgment in its entirety and grant summary judgment for the other remaining defendants on all federal claims.*fn2

I. Factual Background and Procedural History

A. Factual Background

Nicolas Madigan ("Trooper Madigan") is a Pennsylvania State Police Trooper who has been assigned to the Narcotics Unit of Troop F since 1997. (Doc. 110 ¶¶ 2, 3). While investigating the sale of controlled substances in Tioga County, Pennsylvania, in 2006-2007, Trooper Madigan learned that Surine and Lisa Lehman-Curry ("Lehman") were selling controlled substances at Surine's residence-RD. #1, Box 44, Elkland, Pennsylvania. (Id. ¶ 3). Trooper Madigan obtained this information primarily through confidential informants who purchased cocaine from Surine.*fn3 (Id. ¶ 4). The informants had provided reliable information in the past, were registered as confidential informants with the Pennsylvania State Police, and in some cases were observed entering the Surine residence and returning with cocaine. (Id. ¶ 5). Trooper Madigan purchased the cocaine from the confidential informants. (Id. ¶ 6).

On January 31, 2007, Trooper Madigan applied for search warrant in the Commonwealth of Pennsylvania. (Id. ¶ 8). A Magisterial District Judge, the Honorable Judge Brian Edgcomb ("Judge Edgcomb"), reviewed the search warrant application and affidavit of probable cause. (See Doc. 110-1, Ex. A). Judge Edgcomb approved the issuance of the warrant to search Surine's residence and any person located therein for specified items. (Doc. 110 ¶¶ 8, 9, 10; Doc. 110-1, Ex. A). On February 1, 2007, the Pennsylvania State Police's Special Emergency Response Team executed the warrant at Surine's residence, secured the property, and took Surine, Lehman, and Sonny Surine ("Sonny") into custody. (Doc. 110 ¶ 11, 13). The PSP troopers were not members of the State Emergency Response Team. (Id. ¶ 12). After the State Emergency Response Team secured the area, numerous state and federal law enforcement officials conducted a search and seized hundreds of items. (Id. ¶¶ 14, 15).

On June 26, 2007, a federal grand jury indicted Surine. (Id. ¶ 17). The grand jury issued a superseding indictment on September 27, 2007, charging Surine with, inter alia, conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. (Id. ¶ 18). On May 30, 2008, Surine pled guilty to conspiracy to distribute controlled substances. (Id. ¶ 19). On August 5, 2009, United States District Judge James F. McClure sentenced Surine to 360 months of imprisonment. (Id. ¶ 21). Surine appealed the sentence, and on April 13, 2010, the United States Court of Appeals for the Third Circuit affirmed the judgment. (Id. ¶ 22).

B. Procedural History

Surine filed his initial complaint (Doc. 1) pro se*fn4 on October 20, 2008, and an amended complaint (Doc. 58) on May 4, 2009, alleging civil rights violations against the PSP troopers and the other remaining defendants pursuant to 42 U.S.C. § 1983.*fn5

Specifically, Surine seeks relief for: an illegal search and seizure conspiracy, breaking and entering conspiracy, forced entry conspiracy, aggrivated [sic] assalt [sic], excesive [sic] force, theft conspiracy, wrongful imprisonment, purjury [sic] and defamation of character when the Defendants raided [his] home at RD #1 Box 44 Elkland PA 16920 on February 1st 2007 at 6:45 AM.

(Doc. 58, at 1). Additionally, Surine alleges "malicious abuse of due process" against Trooper Madigan. (Id. at 2). The PSP troopers filed the instant motion (Doc. 109) for summary judgment on June 6, 2011, on all of Surine's claims.*fn6 The motion has been fully briefed and is ripe for disposition. (See Docs. 111, 112).

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). Once the moving party demonstrates that there are no genuine issues of material fact, the burden shifts to the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a).

Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

The court will first address whether the favorable termination rule articulated in Heck v. Humphrey, 512 U.S. 477 (1994) bars Surine's claims. Concluding that it does not, the court will then address whether the PSP troopers and other remaining defendants are otherwise entitled to summary judgment on Surine's claims.

A. Application of Heck v. Humphrey

The PSP troopers contend that Surine's claims relating to the search of his home, his arrest, and his subsequent prosecution are barred by Heck's favorable termination rule. (Doc. 111, at 5-8). In Heck, the Supreme Court held that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Id. at 486-87 (footnote omitted; emphasis in original). In the Third Circuit, district courts must conduct a fact-based inquiry to determine whether a claim "necessarily implies" the invalidity of the underlying conviction. Gibson v. Superintendent, N.J. Dep't of Law and Public Safety, 411 F.3d 427, 450 (3d Cir. 2005) overruled on other grounds by Dique v. New Jersey State Police, 603 F.3d 181, 188 (3d Cir. 2010).

The court, out of an abundance of caution, will not bar any of Surine's claims under Heck's favorable termination rule. Surine pled guilty to conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846. 21 U.S.C. § 846 (a)(1). It appears from the record and the nature of the charges that Surine's guilty plea most likely derived primarily from Trooper Madigan's investigation and the subsequent search and seizure of hundreds of items from his residence on February 1, 2007.*fn7 However, the parties failed to provide a list of the items seized from Surine's residence and a review of the transcript of Surine's plea colloquy indicates the government may have had other evidence available to prove that Surine conspired to distribute controlled substances. (Doc. 110-1, Ex. B, at 23). The court will therefore refrain from applying Heck's favorable termination rule.

B. Surine's Claims

1. Fourth Amendment Search and Seizure Claims

The court construes seven of Surine' claims as Fourth Amendment illegal and search and seizure claims: (1) illegal search and seizure conspiracy; (2) breaking and entering conspiracy; (3) forced entry conspiracy; (4) theft conspiracy; (5) aggravated assault; (6) excessive force; and (7) wrongful imprisonment. (Doc. 58, at 2). Surine's claims relate to the issuance of the search warrant, the execution of the search warrant, and his arrest. The court will address each seriatim.

a. Issuance of the Search Warrant

The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. Surine alleges that Trooper Madigan made false statements on the affidavit of probable cause attached to the search warrant issued by Judge Edgcomb on January 31, 2007. (See Doc. 58, at 9).

To establish a Fourth Amendment claim against Trooper Madigan, Surine must proffer affirmative evidence that Trooper Madigan either knowingly and intentionally or with reckless disregard for the truth included materially false statements or omissions in the affidavit of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). Surine has proffered no affirmative evidence that Trooper Madigan knowingly and deliberately or with reckless disregard for the truth made false statements or material omissions in the affidavit of probable cause. See Woods v. Grant, 381 F. App'x 144, 147 (3d Cir. 2010) (affirming the district court's order granting summary judgment when the plaintiff "failed to set forth any evidence showing that Defendants 'knowingly and deliberately' or 'with a reckless disregard for the truth" falsified a statement in order to procure' a search warrant). Corneal v. Jackson Twp., 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003) ("[T]he non-moving party may not simply sit back and rest on the allegations in its complaint."). Accordingly, Trooper Madigan is entitled to summary judgment on Surine's Franks claim.

b. Execution of the Search Warrant

To the extent Surine attempts to assert Fourth Amendment claims against the PSP troopers and remaining defendants for executing an improperly issued warrant, his claim fails as a matter of law. Trooper Madigan's detailed affidavit-describing numerous confirmed drug buys by reliable confidential informants at Surine's residence, corroborated by independent testing and his own personal observations-establishes probable cause as a matter of law.*fn8 See Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997) (observing that a court may conclude in the appropriate case that probable cause exists as matter law "if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding"); (Doc. 110, Ex. A). Next, the warrant describes with particularity the items to be searched and seized, and it is tailored to the probable cause established in Trooper Madigan's affidavit. See Maryland v. Garrison, 480 U.S. 79, 84 (1987); Marron v. United States, 275 U.S. 192, 196 (1927); (Doc. 110-1, Ex. A). Finally, the Application for the Search Warrant and Authorization with an attached affidavit signed by Trooper Madigan contains Judge Edgcomb's signature verifying that Trooper Madigan was duly sworn (or affirmed) before the issuing authority according to the law.*fn9 (Doc. 110-1, Ex. A). The warrant signed by Judge Edgcomb states, "WHEREAS, facts have been sworn to or affirmed before me by written affidavit(s) attached hereto from which I have found probable cause." (Id.). Thus, Judge Edgcomb properly issued the search warrant under the Fourth Amendment of the United States Constitution.

Next, Surine contends that the PSP troopers and remaining defendants improperly executed the search warrant by failing to comply with the knock and announce rule, using excessive force, and not providing him with a copy of the warrant prior to the search. (See Doc. 58, 112). Surine has failed to come forth with any affirmative evidence, beyond the allegations of the pleadings, to connect any of the defendants except the State Emergency Response Team to the initial execution of the warrant and his subsequent arrest. (Doc. 110-1, ¶¶ 10-12). Liability in a civil rights action cannot "be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). A plaintiff must demonstrate that the defendant had personal involvement in the alleged wrongs through either evidence of "personal direction or [] actual knowledge and acquiescence." Id. In the instant case, Surine has not proffered a scintilla of evidence that any of the defendants had actual knowledge and acquiesced to the alleged wrongs committed by the State Emergency Response Team.*fn10 (Doc. 110 ¶ 9); Pappas, 331 F. Supp. 2d at 315. Furthermore, Surine cannot bring a § 1983 damages action against the State Emergency Response Team because it is a state entity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (holding that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983."). To the extent Surine requests injunctive relief against the State Emergency Response Team, his claim is barred by the Eleventh Amendment to the United States Constitution.*fn11 U.S. CONST. amend. XI. Benn v. First Judicial District, 426 F.3d 233, 238 (3d Cir. 2005).

c. Surine's Arrest

Finally, Surine alleges that he was wrongfully imprisoned because he was arrested without probable cause. (Id.at 2, 12). Surine, however, has not linked any of the defendants to his initial arrest during the execution of the search warrant by the State Emergency Response Team. See Rode, 845 F.2d at 1207; (Doc. 110-1, ¶ 12). Furthermore, Surine has presented no affirmative evidence that Trooper Madigan "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions . . . that created a falsehood in applying for an arrest warrant" later that day. Merkle v. Upper Dublin School Dist., 211 F.3d 782, 789 (3d Cir. 2000). Accordingly, the PSP troopers and other remaining defendants are entitled to summary judgment on Surine's Fourth Amendment claims.

2. Perjury Claim*fn12

Surine alleges that PSP troopers and other remaining defendants committed perjury "for statements that were published" which the court construes as a Fourteenth Amendment deprivation of due process claim. (Doc. 58, at 2); See Ali v. Person, 904 F.Supp. 375, 377 (D.N.J. 1995) (construing allegations of perjury as a Fourteenth Amendment due process claim). These allegations appear to refer to statements published in a local newspaper about Surine shortly after his arrest. (See id. at 16-17). These statements cannot constitute perjury because they were not made under oath.*fn13 BLACK'S LAW DICTIONARY (9th ed. 2009) (Defining perjury as "[t]he act or an instance of a person's deliberately making material false or misleading statements while under oath"). Accordingly, the court will grant the PSP troopers and the other remaining defendants summary judgment on this claim.

3. Malicious Prosecution Claim

Next, Surine alleges "malicious abuse of due process" against Trooper Madigan which the court construes as a malicious prosecution claim under § 1983.*fn14

(Doc. 58, at 2). To establish a § 1983 malicious prosecution claim, a plaintiff must prove that "(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding." McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (citation omitted). Trooper Madigan is entitled to summary judgment on this claim because Surine's criminal proceeding ended with Surine's guilty plea to conspiracy to distribute controlled substances. (Doc. 110 ¶ 19).

4. Defamation Claim

Finally, Surine alleges that the PSP troopers and the other remaining defendants defamed his character by making false statements about him in a newspaper article. The court construes the claim as a Fourteenth Amendment due process claim for deprivation of a liberty interest in reputation. (See Doc. 58, at 3, 16-17). Damage to reputation alone is insufficient to establish a § 1983 due process claim. Paul v. Davis, 424 U.S. 693, 711-12 (1976). Rather, a plaintiff must demonstrate "a stigma to his reputation plus deprivation of some additional right or interest" previously recognized under state law. Dee v. Borough of Dunmore, 549 F.3d 225, 233-34 (3d Cir. 2008); Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987). In the instant case, Surine cannot meet the "stigma plus" because he cannot show the deprivation of any additional right or interest. Paul, 835 F.2d at 711-12. Furthermore, Surine has not proffered any evidence specifically identifying any of the PSP troopers or the other remaining defendants as the source of the alleged defamatory statements in the newspaper article or that they had actual knowledge and acquiesced to the alleged wrong. 42 PA. CON. STAT. § 8343 (stating that defamation under Pennsylvania law requires publication by the defendant); Rode, 845 F.2d at 1207. Accordingly, the PSP troopers and the other remaining defendants are entitled to summary judgment on Surine's defamation claim.

IV. Conclusion

For the reasons stated in the above memorandum, the court will grant the PSP troopers' motion. The court will also sua sponte grant summary judgment for the other remaining defendants on all federal claims. To the extent Surine is asserting state law claims, the court will decline to exercise supplemental jurisdiction.

An appropriate order follows.

CHRISTOPHER C. CONNER United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL SURINE, Plaintiff : v. : STATE POLICE EMERGENCY RESPONSE TEAM; NICHOLAS MADIGAN; MICHAEL CLEGG; CHRISTOPHER WHEELER; SCOTT HENRY; MIKE SNYDER; UNKNOWN CLARK; UNKNOWN FRIZT; UNKNOWN BEDELL; UNKNOWN DIAZ Defendants

CIVIL ACTION NO. 4:08-CV-1921

(Judge Conner)

ORDER

AND NOW, this 19th day of January, 2012, upon consideration of the motion for summary judgment (Doc. 109) filed by defendants Nicholas Madigan, Michael Clegg, Christopher Wheeler, Scott Henry, and Bedell (the "PSP troopers"), and plaintiff Paul Surine's ("Surine") pending claims against the other remaining defendants-the State Police Emergency Response Team, Mike Snyder, Clark, Fritz, and Diaz (the "other remaining defendants")-and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. The motion (Doc. 109) for summary judgment filed by the PSP troopers is GRANTED.

2. The other remaining defendants are GRANTED summary judgment sua sponte on all of Surine's claims.

3. To the extent Surine asserts state law claims, the claims are DISMISSED without prejudice.

4. The Clerk of Court is directed to enter JUDGMENT in favor of defendants.

5. The Clerk of Court is directed to CLOSE the case.

CHRISTOPHER C. CONNER United States District Judge


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