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Gorman v. Bail

United States District Court, Third Circuit

May 23, 2013

ROBERT GORMAN, Plaintiff,
v.
JOSEPH BAIL, et al., Defendants.

MEMORANDUM RE: DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

MICHAEL M. BAYLSON, District Judge.

I. Introduction

On November 9, 2012, Plaintiff Robert Gorman, a police officer for the City of Chester, Pennsylvania ("Chester"), filed his Second Amended Complaint (ECF 22) asserting claims under 42 U.S.C. § 1983 - for violations of his First, Fourth and Fourteenth Amendment rights - and state law - for false imprisonment, malicious prosecution, abuse of process, and invasion of privacy - arising out of an alleged conspiracy among Chester's Mayor, Wendell Butler, and certain of his superiors in Chester's Police Department - Major Joseph Bail; former Chief Floyd Lewis III; and current Chief Darren Alston, who was also a major at relevant times - to have Plaintiff arrested and terminated from the police department. Plaintiff also named Chester as a defendant. On November 21, 2012, Defendants filed a Motion to Dismiss Plaintiff's Second Amended Complaint (the "Motion") (ECF 25). Plaintiff Responded (ECF 28) on December 19, 2012.

For the reasons below, Defendants' Motion will be GRANTED in part and DENIED in part.

II. Procedural History

Plaintiff filed his original Complaint on October 11, 2011. On December 8, 2011, Defendants' filed a Motion to Dismiss the original Complaint (ECF 5). On December 22, 2011, Plaintiff requested additional time to respond to that motion or, in the alternative, file an amended complaint (ECF 6). The Court granted leave to amend (ECF 7) on December 23, 2011. On December 28, 2011, Plaintiff filed his First Amended Complaint (ECF 8). On January 10, 2012, Defendants moved for partial dismissal of the First Amended Complaint (ECF 9). On May 9, 2012, the Court issued a Memorandum and Order (ECF 13-14) granting the motion in part and denying it in part, and permitting Plaintiff to file a Second Amended Complaint. Plaintiff then filed a motion for discovery in aid of filing his second amended complaint (ECF 15), which the Court granted (ECF 17) on May 30, 2012. Plaintiff then filed his Second Amended Complaint.

III. Summary of Plaintiff's Factual Allegations

On October 11, 2008, Plaintiff, while off-duty, had an altercation with Marvin J. Fowler at a restaurant known as Crown Chicken (the "Crown Chicken Incident"). Fowler was intoxicated and accosted Plaintiff. Plaintiff told Fowler to leave him alone more than once, but Fowler persisted in his menacing conduct, ultimately threatening to shoot Plaintiff. Although Fowler never displayed a gun or weapon of any kind, Plaintiff felt the need to defend himself, and responded by "inter alia, drawing his pistol and physically escorting Fowler" out of Crown Chicken.[1] (2d Am. Compl. ¶ 11.)

During the altercation, the proprietor of Crown Chicken activated an alarm, and an on-duty Chester police officer came to the restaurant. Plaintiff gave a report of the incident to the responding officer. Fowler subsequently initiated a citizen's complaint against Plaintiff. Thomas Worrilow investigated the complaint for the Delaware County Criminal Investigation Division.[2] According to this investigation, Fowler admitted to: being intoxicated at Crown Chicken, harassing other customers, being escorted from Crown Chicken several times before Plaintiff arrived, repeatedly accosting Plaintiff despite being told to leave him alone, and "sa[ying] something to [Plaintiff]" before Plaintiff removed him the restaurant. (Id. ¶ 16.)

Fowler's complaint and Worrilow's investigation were reviewed by the Delaware County District Attorney's Office, and Plaintiff was not charged with any crime. The Chester Police Department took no action against Plaintiff at that time.

Fowler then initiated a private criminal complaint against Plaintiff. The complaint was scheduled for a hearing, but it was dismissed after Fowler failed to show up and Plaintiff testified on his own behalf.

Defendants then commenced an extended conspiracy to have Plaintiff arrested and terminated from the Chester Police Department because of the Crown Chicken Incident. Sometime in early January 2009, [3] Mayor Butler and Chief Lewis met with Majors Bail and Alston, [4] in addition to two attorneys from the City Solicitor's Office, to discuss the Crown Chicken Incident and taking action against Plaintiff. At the meeting, Bail communicated a desire "to continue to investigate and prosecute" Plaintiff. (Id. ¶ 19.) Someone "suggested that Plaintiff be []arrested, " and "[n]o one objected." (Id.) It was then suggested that the District Attorney's Office should be consulted, and Bail was assigned that task. Sometime after the meeting Bail received a letter from the District Attorney's Office instructing him to follow the correct procedures.

Defendants took no further action regarding Plaintiff until sometime after August 2009. (Id. ¶¶ 20-24.) On or about August 29, 2009, the Chester Fire Commissioner relayed information to Bail that led him to believe that Fowler had been bribed not to appear at the hearing for his private criminal complaint against Plaintiff.[5] Bail then instructed Warrilow to re-investigate Plaintiff.

Warrilow did not begin his re-investigation until approximately January 12, 2010, and it lasted until approximately November 4, 2010. In mid to late January 2010, Warrilow interviewed the Fire Commissioner, Fowler, and Fowler's wife. The Fire Commissioner told Warrilow that he had "overheard a conversation between two males" about one of them having been approached by a Chester police officer and offered $2000. The Commissioner also stated that neither Plaintiff's nor Fowler's name had been used during the conversation, and that he did not know Fowler by sight. (Id. ¶ 26.) Fowler's wife told Worrilow that Fowler had not shown up for the hearing because of an outstanding probation violation. Fowler said he failed to appear at the hearing because his bus was delayed, and when he arrived, he was told his complaint had already been dismissed. Worrilow's re-investigation also "revealed that other people present" at the Crown Chicken Incident "had not seen [Plaintiff] strike Fowler." (Id. ¶ 29.)

On November 4, 2010, at the conclusion of Warrilow's re-investigation, Bail procured an arrest warrant for Plaintiff. In his affidavit of probable cause, Bail stated that Plaintiff "pulled a gun from his waist band, struck Fowler with it several times, caused a cut and lump over Fowler's eye, and physically pushed Fowler out of [Crown Chicken]." (Id. ¶ 31.) Bail did not disclose in his affidavit that:

1. The Crown Chicken Incident had been investigated twice;
2. One of those investigations was based on unreliable information from the Fire Commissioner, who also happened to be Bail's friend;
3. Based on those investigations, neither Worrilow nor the District Attorney's Office had filed charges against Plaintiff; and
4. Bail was seeking the warrant pursuant to the January 2009 agreement with Butler, Lewis, Alston, and two City Solicitors.[6]

On November 11, 2010, after obtaining the warrant, Bail arrested Plaintiff. (Id. ¶ 34.) Butler, Lewis, and Alston knew about the arrest warrant, but did not review or otherwise verify its validity and did nothing to stop the arrest. (Id. ¶¶ 32-33.)

On November 13, 2010, because of his arrest, Plaintiff was suspended from the police force without pay. (Id. ¶ 35.) Plaintiff was not given any opportunity to be heard prior to his suspension. (Id.) Pursuant to a collective bargaining agreement, Plaintiff requested a hearing before the Chester City Council, but Butler, Alston, and Lewis denied his request, and caused the hearing to be held before the Chester Civil Service Commission, which Butler controlled. The Commission terminated Plaintiff on December 16, 2010.[7] (Id. ¶¶ 36-37, 39.)

Plaintiff subsequently filed a grievance. The grievance resulted in an arbitration decision in Plaintiff's favor, and he was reinstated. (Id. ¶ 40.)

On or about July 7, 2011, Plaintiff was tried for the criminal charges arising out the Crown Chicken Incident. (Id. ¶ 41.) He was found not guilty. (Id.) Plaintiff testified on his own behalf at the trial. (Id.)

IV. Legal Standard

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel , 20 F.3d 1250, 1261 (3d Cir. 1994). Courts must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc. , 764 F.2d 939, 944 (3d Cir. 1985).

A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Iqbal clarified that the Court's decision in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), which required a heightened degree of fact pleading in an antitrust case, "expounded the pleading standard for all civil actions.'" 555 U.S. at 684.

Iqbal explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at 678, 685. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly , 550 U.S. at 555); see also Phillips v. County of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008) ("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only fair notice, ' but also the grounds' on which the claim rests." (citing Twombly , 550 U.S. at 556 n.3)). Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556).

Despite Iqbal's strong ruling that the courts need only accept the truth of factual allegations contained in a complaint, Plaintiff's Second Amended Complaint contains constant confusion of facts and legal arguments that impeded the Court's review.

V. Discussion

Plaintiff's claims can be summarized as follows:

1. Violation of his Fourth Amendment protections against search and seizure without probable cause, "counts" 1 and 2 of his Second Amended Complaint;
2. Violation of his First Amendment right to be free from retaliation for protected speech, "count" 3 of his of his Second Amended Complaint;
3. Violation of his Fourteenth Amendment right to due process before his suspension and termination from the Chester Police Department, "count" 4 of his Second Amended Complaint;
4. Section 1983 conspiracy, "count" 5 of his Second Amended Complaint;
5. Pendent state law claims, "counts" 9 through 13 of his Second Amended Complaint.[8]

A. "Counts" 1 and 2: Plaintiff's Fourth Amendment Claims

Plaintiff claims that Defendants violated his constitutional rights under the Fourth Amendment by arresting and then searching him without probable cause.

The threshold issue for Plaintiff's Fourth Amendment claims is whether Bail had probable cause to arrest him. Holmes v. McGuigan , 184 F.Appx. 149, 150 (3d Cir. 2006) (citing Dowling v. City of Philadelphia , 855 F.2d 136, 141 (3d Cir.1988)). "Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested." United States v. Myers , 308 F.3d 251, 255 (3d Cir. 2002). "A police officer may be liable for civil damages for an arrest if no reasonable competent officer' would conclude that probable cause exists." Wilson v. Russo , 212 F.3d 781, 786 (3d Cir. 2000) (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). The fact that a plaintiff was ultimately acquitted of all charges for which he was arrested "is irrelevant to the probable cause analysis." Wright v. City of Philadelphia , 409 F.3d 595, 602 (3d Cir. 2005) (citing Michigan v. DeFillippo , 443 U.S. 31, 36 (1979)) ("the constitutional validity of the arrest does not depend on whether the suspect actually committed any crime" (citing Johnson v. Campbell , 332 F.3d 199, 211 (3d Cir.2003))).

Plaintiff argues that Bail used an untrue affidavit of probable cause to obtain the warrant for his arrest. In order to succeed on his false affidavit theory, Plaintiff must plead facts that, if true, could establish that:

1. Bail "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood"; and
2. "Such statements or omissions are material, or necessary, to the finding of probable cause."

Wilson , 212 F.3d at 786-87 (citation and quotations omitted). Under this standard, Bail could not proffer any facts of which he had a "high degree of awareness of [their] probable falsity" - i.e., "when viewing all the evidence, [Bail] must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported"; and Bail was expected to disclose all facts "in his ken that [a]ny reasonable person would have known... was the kind of thing the judge would wish to know" - a paradigm balancing between the extremes of requiring that "officers relate the entire history of events leading up to a warrant application with every potentially evocative detail that would interest a novelist or gossip, " on the one hand, and allowing officers to "make unilateral decisions about the materiality of information, or, after satisfying [themselves] that probable cause exists, merely inform the magistrate or judge of inculpatory evidence, " on the other. Id. at 787-88 (third alteration in the original) (citations and quotations omitted).

"To determine the materiality of... misstatements and omissions, [courts] excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the corrected' warrant affidavit would establish probable cause." Id. at 789 (citing Sherwood v. Mulvihill , 113 F.3d 396, 399 (3d Cir. 1997)). Thus, in evaluating the truthfulness of Bail's affidavit, the Court is not concerned with whether Bail described what actually transpired during the Crown Chicken Incident, but, rather, whether Bail accurately reported the information of which he was personally aware.

For the reasons below, the Court finds that the information in Bail's affidavit was sufficient to establish legal probable cause to arrest Plaintiff, and Plaintiff has not pleaded facts that can lead to a reasonable conclusion that Bail misstated or omitted ...


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