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Leslie Harper, Alicia Doster and Shuah Levi v. Borough of Pottstown

March 21, 2013

LESLIE HARPER, ALICIA DOSTER AND SHUAH LEVI,
PLAINTIFFS,
v.
BOROUGH OF POTTSTOWN, POTTSTOWN POLICE DEPARTMENT, SERGEANT MICHAEL MARKOVICH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND CHIEF OF POLICE MARK FLANDERS, DEFENDANTS.



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

MEMORANDUM OF LAW RE: MOTION FOR SUMMARY JUDGMENT

Plaintiffs Leslie Harper, Alicia Doster, and Shuah Levi filed claims under 42 U.S.C. § 1983 against Defendants Borough of Pottstown, the Pottstown Police Department, Sergeant Michael Markovich, and Chief of Police Mark Flanders, for violating their rights under the Fourth and Fourteenth Amendments of the U.S. Constitution during the execution of a search warrant at Harper's home. (Amended Complaint) (ECF 4). Plaintiffs also brought claims under Pennsylvania tort law, alleging malicious prosecution, false arrest, false imprisonment, intentional infliction of emotional distress and negligent infliction of emotional distress. (Id.). Defendants moved for summary judgment. For the reasons below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I.Facts and Procedural History

The parties' Statements of Undisputed Facts show that many operative facts are not in dispute. Where there are facts in dispute, the Court notes such below. The Court considers the facts in the light most favorable to the non-moving party, i.e., Plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

In February 2009, Sergeant Markovich of the Pottstown Police Department received a report from a concerned citizen of Pottstown that he had seen an individual engaging in transactions, believed to be drug transactions, in and around the 1100 block of East High Street. (Def. Statement of Undisputed Facts ¶ 4) (ECF 36). That same month, Sergeant Markovich received information from a confidential informant that an individual named "Elijah" was selling heroin, crack cocaine, and marijuana from 1116 East High Street. (Id. ¶ 5). The informant related that individuals known as "50" and "Shoes" were also selling drugs with "Elijah" out of 1116 East High Street. (Id. ¶ 6).

During the months of February and March 2009, Sergeant Markovich performed an investigation of the alleged drug activity at 1116 East High Street. (Aff. of Probable Cause, Def. Ex. A at 3). On two separate occasions, he engaged a confidential informant who related he could purchase heroin from an individual named "Elijah" at 1116 East High Street. (Id. at 4). For each controlled buy, the confidential informant was supplied with U.S. currency and kept under close observation as he walked to 1116 East High Street. (Id.). Each time, Sergeant Markovich observed a black male exit a rear, white door from 1116 East High Street, perform a hand-to-hand transaction with the confidential informant, and re-enter the door. (Def. Statement of Undisputed Facts ¶¶ 12-13; Incident Investig. Report, Def. Ex. E, at 6; Markovich Dep., Def. Ex. A, at 10-11). For both sales, the confidential informant turned over a substance confirmed to be heroin. (Aff. of Probable Cause, Def. Ex. A, at 4-5).

The house located at 1116 East High Street has two separate residential units, one on the first floor and one on the second floor. A yellow, front door to the house provides access to each unit. (Pl. Ex. B). Upon entering the yellow door, one enters a foyer area, which opens to two separate doors. (Pl. Ex. C). One door leads the first floor apartment, and the other leads to a staircase that ascends to upper apartment. The staircase is the only way of accessing the second floor apartment. The first floor apartment can also be accessed through a rear, white door to 1116 East High Street, which opens directly to the apartment's kitchen. (Pl. Ex. D).

Plaintiff Leslie Harper was living in the first floor apartment of 1116 East High Street in early 2009, along with her children. She is cousins with Plaintiff Shuah Levi, who lived in New York City at the time but regularly came to Pottstown to see family and friends. (Levi Dep., Def. Ex. C, at 16-20). In March 2009, Levi was visiting Pottstown for an extended period to look for new employment. (Id. at 15, 19). During that visit, he spent time at Harper's apartment. (Id.). Levi was familiar with Elijah Hill, a resident of Pottstown, and would occasionally bring Hill to Harper's apartment. (Id. at 20-21). Levi was sometimes called "Shoes" as a nickname. (Id.).

On March 18, 2009, Sergeant Markovich filed an affidavit of probable cause for a search warrant for "1116 E. High St. 2nd floor Pottstown, Pa." (Aff. of Probable Cause, Def. Ex. A, at 6, 8, 9, Ex. A). After summarizing the results of his investigation in February and March 2009, he concluded: "Based upon my training and experience, as well as the probable cause outlined in this affidavit, I believe that Elijah Hill is trafficking controlled substances within Montgomery County, Pennsylvania, at 1116 E. High St., 2nd floor Pottstown, Pa 19464." (Id. at 8). Sergeant Markovich sought permission to search the second floor apartment of 1116 East High Street because he concluded, mistakenly, that the rear door of the house led to a staircase, which in turn led to the second floor. Both the confidential informant and the other officers involved in the investigation made the same, incorrect assumption. (Def. Statement of Undisputed Facts ¶ 14). On March 20, 2009, at 8:50 p.m., a warrant was issued for "1116 E. High St. 2nd floor" and was signed by a District Justice. (Warrant, Def. Ex. F). It referred to the white door, noting that "[i]n the back of the house there is a white door." (Id.). The warrant authorized "[t]he search to include all occupants of 1116 E. High St. 2nd floor Pottstown, Pa due to the fact that the items to be searched for are small enough to be concealed on their person." (Id.).

At some time on the evening of March 20, 2009, Sergeant Markovich and several other officers from the Pottstown Police Department arrived at 1116 East High Street. Defendants contend the officers arrived with warrant in hand at 9:30 p.m.; Plaintiffs contend they arrived at approximately 8:00 p.m., without a warrant. (Compare Def. Statement of Undisputed Facts ¶ 19; and Markovich Dep., Def. Ex. B, at 30-31; with Pl. Reply to Undisputed Facts ¶ 19; Doster Dep., Def. Ex. K, at 15, 19; and Harper Dep., Def. Ex. D, at 48). At the time of the officers' arrival, Harper and Levi were watching television in an interior room of the apartment. Harper's children were playing in a separate room. (Levi Dep., Def. Ex. C, at 27-30; Harper Dep., Def. Ex. D, at 27). Alicia Doster, Harper's babysitter, was also in the apartment, with her niece. (Doster Dep., Def. Ex. K, at 22). The officers knocked on the rear door, and it was opened by Doster. (Harper Dep., Def. Ex. D, at 28). Upon their entry, they realized the door led only to a first floor apartment. (Def. Statement of Undisputed Facts ¶ 21). However, they decided to proceed with the search.*fn1

As they executed the search, the officers made Harper, Levi and Doster either lie on the ground or sit in chairs, and they placed them in handcuffs. (Levi Dep., Def. Ex. C, at 30-32; Harper Dep., Def. Ex. D, at 28, 34, 40-41; Doster Dep., Def. Ex. K, at 23-24). The officers recovered a marijuana blunt from the "middle room" where Levi was found and a clear bag of a substance alleged to be marijuana, but for which there is no lab report, from Harper's purse. They subjected Harper, Levi and Doster to strip searches -- Harper and Doster were searched in a bathroom by a female officer, and Levi by a male officer, in a separate bathroom. (Def. Statement of Undisputed Facts & Pl. Reply, ¶¶ 25-27). No drugs were recovered from Plaintiffs' bodies or clothing, but $650 in cash was recovered from Levi's right book, $360 was recovered from his left boot, and $110 was recovered from his front pants pocket. (Def. Statement of Undisputed Facts ¶ 25). Harper contends that when the search was over, she was taken "outside to wait for the officer with the search warrant." (Harper Dep., Def. Ex. D, at 48). She states she was then given "the paperwork" by Sergeant Markovich, after which the officers left and Harper went inside to clean up. She saw it was "about nine, maybe 9:10." (Id. at 48-49).

Sergeant Markovich filed charges against Harper and Levi for possession of marijuana and drug paraphernalia. (Def. Statement of Undisputed Facts ¶ 29). Harper was never arrested, but Levi was arrested on the night of the search and taken to the Pottstown police station. He spent the night there, was arraigned the next day, and was then released on his own recognizance. (Levi Dep., Def. Ex. C, at 37-38; Incident Investig. Report, Def. Ex. E, at 7). Some time later, Harper appeared for a preliminary hearing, at which she was informed that Sergeant Markovich had dropped her charges. (Harper Dep., Def. Ex. D, at 56; Markovich Dep., Def. Ex.

B, at 47-48).*fn2 Levi's prosecution on the marijuana charges went forward and he received a Section 17 disposition for them. (Def. Statement of Undisputed Facts ¶ 34).

Plaintiffs Harper, Levi and Doster filed a Complaint in this Court on March 18, 2011 and an Amended Complaint on March 21, 2011. (ECF 1 & 4). The Amended Complaint named the Borough of Pottstown, the Pottstown Police Department, Sergeant Michael Markovich, and Chief of Police Mark Flanders, as defendants, and included seven counts: (1) an action under 42 U.S.C. § 1983 for violations of Plaintiffs' rights under the Fourth and Fourteenth Amendment, on account of their subjection to strip searches, false arrest, false imprisonment, and malicious prosecution;*fn3 (2) malicious prosecution; (3) false arrest; (4) false imprisonment; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; and (7) punitive damages. (ECF 4). Although the Amended Complaint does not specify whether such is the case, it appears that Counts II through VII arise under Pennsylvania law. Defendants filed an Answer on August 24, 2011 (ECF 7). After several discovery disputes, hearings, and motions for sanction, discovery was concluded in November 2012. (ECF 33). Defendants moved for summary judgment on November 29, 2012 (ECF 34, 35 & 36), and Plaintiffs responded on December 28, 2012. (ECF 42, 43 & 44).

II.Standard of Review

A district court should grant a motion for summary judgment if the movant can show "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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson 477 U.S. at 248. A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id. Under Rule 56, the Court must view the facts and all reasonable inferences in the light most favorable to the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

III.Analysis

A.Plaintiffs' Claims under Section 1983

The first Count in the Amended Complaint seeks relief under 42 U.S.C. ยง 1983, which provides a right of action to a plaintiff whose "rights, privileges, or immunities," secured by the U.S. Constitution or laws of the United States, were violated by an official acting under color of law. Nextel Partners Inc. v. Kingston Twp., 286 F.3d 687, 693-94 (3d Cir. 2002). Plaintiffs contend Defendants violated their rights under the Fourth and Fourteenth Amendments of the U.S. Constitution in two manners: first, by submitting Plaintiffs to false imprisonment, false arrest, and malicious prosecution, without sufficient justification; second, by subjecting Plaintiffs to unconstitutional strip searches. Defendants move for ...


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