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Robert A. Dombrosky v. Eric C. Stewart

August 27, 2012

ROBERT A. DOMBROSKY, PLAINTIFF,
v.
ERIC C. STEWART, DEFENDANT.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Presently before the Court is the Motion for Summary Judgment (Doc. 44) filed by Defendant Eric S. Stewart. Plaintiff Robert A. Dombrosky asserts that Defendant, the Assistant Chief of Police for the Eastern Pike Regional Police Department, violated his constitutional rights by treating him differently from other similarly situated "members of the motoring public" after Plaintiff was involved in a single-vehicle motor accident on July 19, 2008. Specifically, Plaintiff alleges that Defendant selectively enforced the motor vehicle and crimes codes and retaliated against him in violation of the First and Fourteenth Amendments. Defendant has now filed a motion for summary judgment seeking dismissal of the equal protection and retaliation claims. Because Plaintiff has failed to present evidence that he was treated differently from individuals that were "alike in all relevant aspects," and he has failed to demonstrate that Defendant took retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her First Amendment rights, Defendant's motion for summary judgment will be granted.

I. Factual Background

On September 30, 1998, Plaintiff began working as a police officer with the Westfall Township Police Department ("WTPD"). (Def.'s Statement Material Facts, "Def.'s SMF", ¶ 1.) On July 16, 2007, when Plaintiff was a sergeant with the WTPD, he was charged with criminal violations in Port Jervis, New York, that were unrelated to his job. (Dombrosky Aff.,

¶ 15.) Thereafter, on or about September 6, 2007, Plaintiff agreed to take unpaid leave pending resolution of the Port Jervis charges. (Id. at ¶¶ 19-20.) On February 19, 2008, one of the two Port Jervis charges against Plaintiff was dismissed and he was acquitted of the second charge. (Id. at ¶ 31.) Plaintiff subsequently sought reinstatement to his position with the WTPD, which is the subject of a separate legal proceeding. See Dombrosky v. Banach, M.D. Pa. No. 3:09-CV-02579.

On July 19, 2008, Plaintiff attended a party at the home of Gary Mercer. (Def.'s SMF, ¶ 13.) Plaintiff came and left the party on two separate occasions. (Id. at ¶ 14.) While at the party, Plaintiff consumed multiple alcoholic beverages. (Id. at ¶¶ 15-16.) The second time Plaintiff left the party, he drove himself in a truck. (Id. at ¶ 17.)

Approximately one-half to three-quarters of a mile from Mr. Mercer's home, Plaintiff swerved off the road and struck a tree. (Dombrosky Dep., 44:6-10.) The parties dispute the reason this accident occurred, as Plaintiff claims he swerved to avoid a bear and Defendant asserts that Plaintiff drove off the road because he was intoxicated.

After the accident, Plaintiff had no cell phone service, so he walked back up the road in an attempt to get reception. (Insurance Tr., 4.) Once he got reception, he spoke to the police department and they came to the scene to file a report. (Id.) Plaintiff also contacted his insurance carrier. (Plaintiff's Counter-Statement of Facts, "Plf.'s CSF", ¶ 74.) Plaintiff then walked home. (Insurance Tr., 4)

According to the police report prepared by Sergeant David Zegarski, when he arrived at the scene, Plaintiff was not present. (Zegarski Report.) Sergeant Zegarski observed Plaintiff's truck and noticed severe damage to the front of the vehicle and some damage to the passenger side. (Id.) As a result, the vehicle was towed from the scene. (Id.) Sergeant Zegarski and Officer Linehan then went to Plaintiff's residence to see if he was home. (Id.)

No one was at Plaintiff's home, however, when Sergeant Zegarski arrived. (Id.)

Thereafter, as Sergeant Zegarski's shift was ending, he contacted Defendant who was the on-call supervisor. (Stewart Report.) Defendant decided to come and assist Officer Kevin Nearing with the investigation and he proceeded to Plaintiff's residence. (Id.) When Defendant arrived, he spoke with Brooke Bogach, but Ms. Bogach advised Defendant that Plaintiff was not home. (Id.) Ms. Bogach then left the residence to search for Plaintiff. (Id.)

As Defendant left Plaintiff's house and returned to his vehicle, he heard Plaintiff's voice. (Id.) Defendant asked Plaintiff where he had been, and Plaintiff replied that he walked five miles home from the accident. (Id.) Plaintiff then welcomed Defendant into his home.

At that time, Defendant noticed Plaintiff was visibly intoxicated, (id.), as Plaintiff had a strong alcohol odor on his breath, he was walking with a sway, and his eyes were bloodshot. (Stewart Dep., 185:6-16.) Plaintiff, however, disputes that he was intoxicated at the time. Defendant and Plaintiff engaged in a debate over the circumstances surrounding Plaintiff's accident, and Plaintiff alleged that another individual, who Plaintiff only identified as "Chris", was the operator of the truck at the time of the accident. (Stewart Report.) Officer Nearing then arrived at Plaintiff's home, and observed Plaintiff and Defendant talking in Plaintiff's kitchen. (Id.)

Shortly thereafter, Defendant and Officer Nearing went to Robert Grimila's house because Plaintiff informed Defendant that he was there prior to the accident. (Id.) Mr. Grimila denied that Plaintiff had been at his home. (Id.) Instead, Mr. Grimila told the officers that Plaintiff had returned to the party at Mr. Mercer's home in the evening when he was visibly intoxicated. (Id.)

Officer Nearing and Defendant then went to Mr. Mercer's home where they spoke with Mr. Mercer and Susan Konitsky. (Id.) Both Mr. Mercer and Ms. Konitsky stated that Plaintiff was intoxicated at the party. (Id.) Additionally, they stated that "Chris" could not have been driving the truck at the time of the accident because he was still at the party after Plaintiff left. (Id.)

Due to these events, Plaintiff was issued three (3) traffic citations and one (1) non-traffic citation. (Def.'s SMF, ¶ 32.) Specifically, Plaintiff was charged with violating: (1) 75 Pa. Cons. Stat. Ann. § 3744, duty to give information and render aid; (2) 75 Pa. Cons. Stat. Ann. § 3745, accidents involving damage to unattended vehicle or property; (3) 75 Pa. Cons. Stat. Ann. § 3748, giving false reports; and (4) 18 Pa. Cons. Stat. Ann. § 5505, public drunkenness. (Id. at ¶ 33.) As a result of these charges, Defendant requested that Solicitor Mincer accompany him to the hearing against Plaintiff in front of the District Judge after Plaintiff threatened to go after the Commission. (Plf.'s CSF, ¶ 88.) Defendant's request, however, was denied by the District Attorney's Office. (Id. at ¶ 89.) Ultimately, Plaintiff was found not guilty with respect to the public drunkenness charge, but he was adjudicated guilty of the traffic citations. (Def.'s SMF, at ¶ 34.) Plaintiff appealed the guilty verdicts to the Court of Common Pleas of Pike County, Pennsylvania, but the appeal was denied. (Id. at ¶ 35.)

On August 15, 2009, a DUI checkpoint was conducted on Delaware Drive in Matamoras, Pennsylvania. (Id. at ¶ 38.) Although Plaintiff lived on Delaware Drive, he was not stopped at the checkpoint nor did he personally observe this checkpoint. (Id. at ¶ 39.)

II. Procedural History

Based on the foregoing events, Plaintiff commenced this action against Assistant Police Chief Stewart on July 16, 2010. (Doc. 1.) On September 16, 2010, Plaintiff filed an Amended Complaint against Defendant asserting a violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. (Doc. 9.) In particular, Plaintiff asserted that Defendant selectively enforced the motor vehicle and criminal codes with respect to him. (Id.)

Defendant subsequently sought dismissal of Plaintiff's Amended Complaint for failure to state a claim upon which relief could be granted. (Doc. 12) On November 4, 2010, Defendant's motion to dismiss was denied because Plaintiff pled sufficient facts to state a selective enforcement claim. (Doc. 16.)

Defendant subsequently sought reconsideration of the Memorandum and Order on the basis that the Court erred in analyzing Plaintiff's claim as a selective enforcement claim as opposed to a "class of one" claim. (Doc. 17.) Although Defendant's motion for reconsideration was granted and Plaintiff's claim was examined under the "class of one" theory, Defendant's motion to dismiss was still denied as the Amended Complaint adequately stated a "class of one" claim. (Doc. 21.) Importantly, in granting reconsideration, it was stated that "[w]hile the Court is not completely convinced that it was ...


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