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Kathleen Roberts, Et. Al. v. Township of Upper Darby

November 26, 2012

KATHLEEN ROBERTS, ET. AL.
v.
TOWNSHIP OF UPPER DARBY, ET. AL.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 26th day of November 2012, upon consideration of Defendants' Motion for Summary Judgment (Doc. No. 11) and Plaintiff's responses thereto (Doc. Nos. 35, 36), it is hereby ORDERED that said Motion (Doc. No. 11) is GRANTED. The Clerk of Court is directed to close this matter for statistical purposes.

I. Factual Background and Procedural History*fn1

This case arises from the execution of a search warrant at 5239 Fairhaven Road in Upper Darby Township, Pennsylvania. The search warrant was executed on September 14, 2007, following an investigation by the Upper Darby Township Police Department Narcotics Division. Plaintiffs Kathleen Roberts ("Plaintiff" or "Roberts") and Michael Weyler*fn2 lived at the residence on the date of the search.

The events leading to the search began on or around September 10, 2007, when Captain George J. Rhoades Jr. of the Upper Darby Township Narcotics Division received a phone call from an anonymous informant. (Doc. No. 12, Ex. C, at 19-21). The informant told Captain Rhoades that drugs were being used and sold at 5239 Fairhaven Road. She also stated that people were coming and going from the house throughout the early evening hours, and only staying for short periods of time. (Id. at 21, 24). The informant refused to provide her name, but Captain Rhoades testified that she sounded like an elderly woman who was "scared to death." (Id. at 29). The informant called Captain Rhoades again about two days later. She told Rhoades that the drug activity was still occurring at the residence, and a man by the name of Charles Weyler lived at the house.*fn3 (Id. at 54-55).

In the same week that the elderly woman called, Captain Rhoades received a phone call from a second informant.*fn4 Similar to the elderly woman, the second informant told Captain Rhoades that drugs were being used and sold at 5239 Fairhaven Road. (Doc. No. 12, Ex. C, at 115). She also told Captain Rhoades that the residents had guns inside the house. (Id.). That same week, Detective Arthur Earle informed Captain Rhodes that he had also received information that cars were frequently driving by 5239 Fairhaven Road, and that drug activity was apparently occurring in front of the residence. (Id., at 180-81; Ex. G, at 73-74).

In response to the information he received, Captain Rhoades conducted a "trash pull" to determine whether the trash discarded from 5239 Fairhaven Road provided any likelihood of drug activity. (Doc. No. 12, Ex. C, at 136). Around 3:00 a.m., on September 14, 2007, Captain Rhoades obtained four trash bags from 5239 Fairhaven Road. The bags were located inside a trash bin, which had been left out on the curb for removal. (Doc. No. 12, Ex. A, Ex. C, at 133-135). Upon searching the trash contents, Captain Rhoades found mail addressed to 5239 Fairhaven Road, as well as a newspaper photograph of Mike Weyler. Captain Rhoades also found several items in the trash indicative of drug activity including two small black bags commonly used to package marijuana, one large "zip lock" bag commonly used to hold smaller bags that hold marijuana, and cigar tobacco and wrappers.*fn5 One of the small black bags contained "green leaf" residue, which ultimately tested positive for marijuana. (See Doc. No. 12, Exs. A, C at 34-37, K).

Based on the foregoing information, Magisterial District Justice Kelly A. MicozzieAguirre approved a search warrant on September 14, 2007, permitting the Upper Darby Township Police Department to search 5239 Fairhaven Road for controlled substances, devices, and drugs. (Doc. No. 12, Ex. A; Doc. No. 35, ¶ 1). Captain Rhoades was the affiant for the search warrant. Later that evening, the following members of the Upper Darby Police Department executed the search warrant: Superintendent Michael Chitwood, Captain Rhoades, Captain Anthony Paparo, Detective Earle, Officer William McGoldrick, Officer Philip Lydon, Officer William Sminkey and Lieutenant Tom Johnson. (See Doc. No. 12, Ex. C, at 67).

When the police arrived at 5239 Fairhaven Road, Captain Anthony Paparo knocked on the door several times. (Id. at 83). He stated that the police were outside and had a warrant to search Plaintiff's residence. Because Plaintiff never answered the door, the police used a "battering ram" to force entry into Plaintiff's residence. (Id.) Plaintiff claims she never heard any knocking at her door before the police entered her residence.

When the officers entered, they had their handguns drawn. (Id., at 97-98). One of the officers pushed Plaintiff Roberts to the ground, and another officer subsequently placed her in handcuffs. Those two officers then helped Plaintiff Roberts off the ground and placed her on a nearby mattress, where they showed her the search warrant. (Id., at 105). Plaintiff alleges that at least one gun was pointed at her head until she sat on the mattress. The officers then allowed Plaintiff Roberts' son, Plaintiff Michael Weyler, to sit next to his mother on the mattress. Plaintiff alleges that a gun was pointed toward Michael until he sat on the mattress. (Doc. No. 12, Ex. B, at 170-171).

As Plaintiff Roberts sat on the mattress, the police officers continued to search the premises. After Plaintiff Roberts continually told the officers that no drugs were located in the house, one of the officers allegedly called her a "f---ing liar" and another officer called her a "b--ch." (Doc. No. 12, Ex. B, at 113). Roberts was then moved from the mattress to the dining room.

While Roberts sat handcuffed in the dining room, Detective Earle located illegal contraband on top of the kitchen refrigerator. The contraband included marijuana, "glassine" bags, stems, and seeds. (See Doc. No. 12, Ex. G, at 56-67). Roberts was subsequently arrested.

Prior to transporting Roberts to police headquarters, a female officer searched Roberts in the kitchen area. (Doc. No. 12, Ex. B., at 192). The female officer conducted a thorough body search, but found no further contraband. (Doc. No. 12, Ex. M, at 14-15).

Plaintiff was charged with possession of a controlled substance and use/possession of drug paraphernalia. (See Doc. No. 12, Ex. O). The state court later nolle prossed the charges. (See Doc. No 12, Ex. O; Doc. No 35, at ¶ 60). During the criminal proceedings, Plaintiff moved to suppress the physical evidence. In her motion, Plaintiff alleged the search violated her rights under the Pennsylvania and United States constitution. (Doc. No. 12, Ex. N). The court denied Plaintiff's motion to suppress the evidence. (See Doc. No 6, at ¶ 54; Doc. No. 12, Ex. O).

On December 21, 2009, Plaintiff brought this civil suit against the Township of Upper Darby and members of its police force, seeking recompense for the injuries suffered as a result of the search on September 14, 2007. Plaintiff's complaint asserts both federal constitutional claims pursuant to 42 U.S.C. § 1983 and state law tort claims. Defendants filed this instant motion, arguing that they are entitled to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, we agree.

II. Legal Analysis

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), we must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is appropriate where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, the nonmoving party cannot avoid summary judgment "merely by restating the allegations of his complaint, but must point to concrete evidence in the record that supports each and every essential element of his case." Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) (citing Celotex, 477 U.S. at 322). "The mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Here, Plaintiff failed to file a timely and complete response to Defendants' motion for summary judgment. (See Doc. Nos. 36, 37). A party moving for summary judgment is not entitled to summary judgment simply because the non-movant did not oppose the motion. See E.D. Pa. R. Civ. P. 7.1(c); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). The Court will grant the motion if, based on the ...


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