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Mohamed Sita Berete v. Officer Christopher Cortazzo

December 18, 2012


The opinion of the court was delivered by: Joyner, C. J.


Before this Court are Defendants' Motion for Partial Summary Judgment (Doc. Nos. 31 and 32), Plaintiff's Response in opposition thereto (Doc. No. 35), and Defendants' Reply in further support thereof (Doc. No. 36). For the reasons set forth in this Memorandum, the Court will grant the Defendants' motion in part and deny it in part.


Briefly, this case arises from an encounter between Mohamed Sita Berete ("Plaintiff") and Officer Christopher Cortazzo and other members of the Reading Police Department (with Officer Cortazzo, "Defendants") in February of 2011. *fn1 The Plaintiff was driving north on 9 th Street in Reading, Pennsylvania, a high crime area, in the evening. The windows on the car that the Plaintiff was driving were tinted. Officer Cortazzo pulled the Plaintiff over in a traffic stop due to the windows. As Officer Cortazzo approached the vehicle, the Plaintiff was moving his body to his right. Officer Cortazzo told the Plaintiff to stop moving, asked him for the vehicle information, and asked who owned the vehicle. The Plaintiff says that he replied "My man E," a nickname for Edwin Acevedo, the owner of the car. Officer Cortazzo heard "Manny," and observed that the car actually belonged to Edwin Acevedo. Officer Cortazzo asked the Plaintiff to step out of the car so he could perform a pat-down of the Plaintiff.

According to the Defendants, after the Plaintiff was out of the car, he pushed Officer Cortazzo in the chest and ran south on 9th Street. Officer Cortazzo thought he saw the Plaintiff reach toward his right waistband, he deployed his taser, and the Plaintiff fell to the ground. When the Plaintiff hit the ground, a small pistol fell on the ground next to him. The Plaintiff was tasered at least one more time. In the mean time, two other officers, Officers Menges and Demko, arrived. The officers arrested and handcuffed the Plaintiff, searched him, and found a small plastic bag they suspected and confirmed was cocaine. Officer Cortazzo went into the Plaintiff's vehicle, allegedly to turn it off and remove the keys, and saw another clear plastic bag with what he suspected and confirmed was cocaine. Throughout this encounter, the Plaintiff states that Officer Cortazzo punched, kicked, and insulted him with racial epithets.

The Plaintiff was charged with: (1) improper sunscreening; (2) escape; (3) firearms not to be carried without a license; (4) receiving stolen property; (5) knowing or intentional possession of a controlled substance; (6) aggravated assault; (7) simple assault; and (8) possession with intent to deliver a controlled substance. On April 28, 2011, the Plaintiff filed a motion to suppress all evidence obtained during his arrest, alleging that the evidence was otbained through an illegal search and seizure. Judge Ludgate, of the Court of Common Pleas of Berks County, denied the Plaintiff's motion to suppress, making findings of fact and conclusions of law. In a trial in March of 2012, the Defendant was found guilty of all offenses except aggravated assault, simple assault, and possession with intent to deliver. The Plaintiff filed his Complaint against the Defendants on June 28, 2011, acting pro se . The Defendants filed the present Motion for Partial Summary Judgment on August 20, 2012. After receiving an extension for filing his response, the Plaintiff filed his response on November 7, 2012, and the Defendants filed a reply on November 23, 2012.

So far as we can discern, the Plaintiff has asserted the following claims in his Complaint: (1) false or illegal arrest; (2) illegal search and seizure; (3) excessive force; (4) racial profiling and discrimination; and (5) assault and battery.

(Compl., at 4, Doc. No. 3). *fn2 The Defendants have moved for summary judgment on all claims except for the Plaintiff's claim of excessive force, where they recognize there are disputed issues of material fact. (Br. in Supp. of Defs.' M. for Partial Summ. J., at 1 n. 1, Doc. No. 32). The bulk of the Plaintiff's claims fall under 28 U.S.C. § 1983.


Summary judgment is proper "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." Fed. R. Civ. P. 56(a). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party; a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks , 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 535 (3d Cir. 2007); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party cannot rely on "bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005). When the non-moving party is the plaintiff, she must "make a showing sufficient to establish the existence of [every] element essential to [her] case and on which [she] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


As a preliminary matter, the Court will set forth the standards for qualified immunity and municipal liability, which are relevant to all of the Plaintiff's claims except assault and battery. Defendants assert that Officer Cortazzo is entitled to qualified immunity on any constitutional violations that might have occurred. In Saucier v. Katz, the Supreme Court established a two-part analysis that governs whether an official is entitled to qualified immunity. 533 U.S. 194, 201 (2001). First, the court asks whether the facts shown by the plaintiff demonstrate the violation of a constitutional right. Id. Second, the court inquires whether the right at issue was clearly established at the time of the alleged misconduct. Id. For a plaintiff to prevail, both prongs must be satisfied; however, courts may address the two prongs in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Defendants assert that the Plaintiff's claims against the Reading Police Department fail under Monell v. Department of Social Servs., 436 U.S. 658 (1978). To establish Section 1983 liability against a municipality under Monell, a plaintiff must show the deprivation of a constitutional right and that the constitutional violation resulted from "a policy, regulation or decision officially adopted by the governing body or informally adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Because liability for both Defendants depends upon the existence of a constitutional violation, ...

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