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Ernest Priovolos v. Cpl. Aaron M. Richwine and Warwick Police Dept. and/Or

April 18, 2013

ERNEST PRIOVOLOS, PLAINTIFF,
v.
CPL. AARON M. RICHWINE AND WARWICK POLICE DEPT. AND/OR TOWNSHIP, DEFENDANTS.



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

OPINION

I.INTRODUCTION

Plaintiff Ernest Priovolos initiated the instant civil rights action against Defendants Corporal Aaron Richwine ("Cpl. Richwine") and Warwick Police Department and/or Township ("Warwick Township") based on an incident that occurred on June 18, 2011. On that day, Cpl. Richwine arrested Plaintiff for driving under the influence ("DUI"). Plaintiff claims that Cpl. Richwine arrested him for DUI without probable cause and during the arrest used excessive force, both in violation of his Fourth Amendment rights. Plaintiff also contends that Cpl. Richwine intentionally inflicted emotional distress on him in violation of state law.

Following discovery, Defendants jointly moved for summary judgment on all claims. For reasons that follow, the Court will grant Defendants' Motion.*fn1

II.FACTUAL BACKGROUND

The following facts are recited in a light most favorable to Plaintiff as the non-moving party.*fn2 In 2011, Plaintiff had two main sources of income: delivering AutoShopper magazines to local businesses for a company based in Toms River, New Jersey, and cleaning job sites for his brother's roofing and siding company. (Doc. No. 28-3 at 3-4, 6.)

On Saturday, June 17, 2011, he spent the morning and early afternoon working for his brother in Horsham, Pennsylvania. (Id. at 6.) Plaintiff testified that around 2 p.m. he and his brother bought lunch at a nearby Wawa and split a quart of beer purchased from an adjacent bar. (Id. at 6-7.) After lunch, Plaintiff drove his van to a second job site, where he worked until early evening. (Id. at 6, 10.) Plaintiff ended his working day by delivering AutoShopper magazines until about 11:00 p.m. (Id. at 6-7.) He then went through the drive-thru at a local Burger King, and proceeded to spend the next couple hours driving around Bucks County in an attempt to locate his brother. (Id. at 7.)

At approximately 1:15 a.m., on Sunday, June 18, 2011, Plaintiff was pulled over by Cpl. Richwine for speeding in Warwick Township. (Id. at 7-8.) Their entire encounter has been captured on video with an audio component. (See Doc. No. 29.) On the video, Cpl. Richwine, the only officer on the scene initially, approached the driver's side window of Plaintiff's vehicle and asked Plaintiff for his driver's license and if he had been drinking that day. (Id.; Doc. No. 28-3 at 9.) Plaintiff told Cpl. Richwine that he had a "quart of beer" with some "guys" after work.*fn3 (Doc. No. 29 at 01:34 -- 01:35.)

After running a check on Plaintiff's license, Cpl. Richwine returned to the vehicle and attempted to give Plaintiff a preliminary breath test while he still remained seated inside his van. (Id.) Under Pennsylvania law, an officer is authorized to conduct the breath test.*fn4 (Doc. No. 28 at 2.) At his deposition, Plaintiff testified that Cpl. Richwine "came [back] to the car and he reached in the car and he hit me with the plastic tube right on my lower lip. . . . [which] split my lip a little bit." (Doc. No. 28-3 at 9.) Plaintiff admittedly said nothing about the alleged injury to Cpl. Richwine. (See id.) The results of the preliminary breath test showed that Plaintiff had a blood alcohol concentration of .14%, which is in excess of the legal limit of .08%.*fn5 (Doc. No. 28 at 2); 75 Pa. Cons. Stat. 3802(a)(2).

Cpl. Richwine then directed Plaintiff to step out of the vehicle so he could administer several field sobriety tests.*fn6 (Doc. No. 28-3 at 10.) He provided Plaintiff with instructions, including a personal demonstration, on three separate tests: (1) standing in one place with head tilted back; (2) walking heal-to-toe in a straight line; and (3) standing with one-leg raised. (Id. at 11.) Prior to taking the tests, Plaintiff informed Cpl. Richwine that he "had a bad knee and . . . [fell] off a ladder." (Id.) Although Plaintiff testified that he also had a bad back, he admits that he did not tell Cpl. Richwine about his back problems prior to taking the tests. (See id. at 11-12.) Regardless of his medical complaints, Plaintiff testified and the video confirms, that he had difficulty performing two of the three field sobriety tests. (See id. at 12; Doc. No. 29 at 01:37 -- 01:38.)

After completing the third test, Cpl. Richwine placed Plaintiff under arrest for DUI. (Doc. No. 28-3 at 12; Doc. No. 29 at 01:38.) The entire encounter lasted less than six minutes. (See Doc. No. 29 at 01:32 -- 01:38.) After the arrest, Cpl. Richwine gave him several opportunities to take a chemical test, which he refused, despite Cpl. Richwine's warning that his license would automatically be suspended under Pennsylvania law. (Doc. No. 28-3 at 13.) Plaintiff was taken briefly to the police station, fingerprinted, and then Cpl. Richwine "was nice enough to drive [him] home, because nobody answered the phone [at his house]." (Id.) Plaintiff has not had any type of mental health counseling or physical therapy as a result of Cpl. Richwine's conduct.*fn7 (Id. at 17.)

Plaintiff was later found not guilty of DUI in state court. (Id. at 15.) However, as Cpl. Richwine had warned, Plaintiff lost his driver's license for a period of time for refusing to take a chemical test. (Id.) Moreover, Plaintiff was on state parole on June 18, 2011, and his arrest for DUI was a violation of his parole conditions. This resulted in his parole officer taking action that returned him to prison for several months. (Id. at 15-16, 18.)

On February 21, 2012, Plaintiff filed the instant Complaint based on the above encounter. ...


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