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Nwegbo v. Borough

United States District Court, Third Circuit

July 3, 2013



JACOB P. HART, Magistrate Judge.

Plaintiff, Sunday Nwegbo, a Councilman of Colwyn Borough, filed this action under 42 U.S.C. § 1983 against the Borough, its then police lieutenant, Wendell Reed, Councilwomen Tonette Pray, Patrolman Clinton Craddock, and Borough Treasurer, MacDonald Ford. The action stems from incidents that took place at a Borough council meeting on June 9, 2011. Nwegbo alleges that he was unlawfully arrested and attacked by Reed and Craddock and that these actions were in retaliation for his protected speech at the Council meeting.

In Count I, Nwegbo alleged that all Defendants, acting under color of state law, deprived him of his Constitutional rights including his right to be free from false arrest, false imprisonment and excessive force. He also alleges that they have violated his rights of freedom of speech, substantive and procedural due process and equal protection. Count II was a Monell claim under 42 U.S.C 1983, but Nwegbo has since dismissed the claims against the Borough. In Counts III and IV, Nwegbo alleges that defendants Reed and Cradock deprived him of his Fourth Amendment rights and used excessive force and arrested him without probable cause. In Count V, Nwegbo alleges that Defendants Pray and Ford violated his First Amendment rights, but he has since dismissed the claims against Defendant Ford. In Count VI, he brings a First Amendment claim against all defendants for retaliation. In his final claim under 1983, he alleges that all defendants retaliated against him for his speech and for bringing the lawsuit and deprived him of his First Amendment rights. The remaining counts are all state law claims against Defendants Reed and Cradock, as follows: assault and battery (Count VII), false arrest (Count VIII), false imprisonment (Count IX), malicious prosecution (Count X), and civil conspiracy (Count XI). Currently pending are Defendant Cradock's Motion for Partial Summary Judgment (docket entry #21) and Defendants Pray and Reed's Motion for Summary Judgment (docket entry #23), to which Plaintiff has responded. For the following reasons, the Court grants Defendants motion in part, dismissing all claims against Defendant Pray and dismissing Plaintiff's claims against Officer Craddock for malicious prosecution, violation of his First Amendment rights and conspiracy. As to Defendant Reed, we dismiss Plaintiff's claim of conspiracy.[1]


Plaintiff, Nwegbo is an elected member of the Colwyn Borough Council and began his elected term in January, 2010. Tonette Pray is also an elected member of the Borough Council and has been President of the Council since January, 2008. Lt. Reed was the officer in charge of the Colwyn Borough Police Department and Officer Craddock was a police officer in the Borough.

On June 9, 2011, there was a regularly scheduled meeting of the Borough Council. The members of the Council and officials were sitting in a U shape with Tonette Pray, Martha Vanauken, and the solicitor at the head of the table. To Prey's right was Mr. Ford, the engineer Eileen and Mayor Rutland and to Prey's left was Patrick Heller, Nwegbo, Mr. Booker and Chief Reed at the end of the table. Id. at 19-20. Lt. Reed was at the meeting in his official capacity and Officer Craddock was off duty and in the audience. During the meeting, Borough Treasurer, MacDonald Ford, was giving a report to Council. While he was giving his report Nwegbo and Ford exchanged words and the meeting was ended abruptly.

According to Nwegbo, Ford began reading information accusing former council members of taking loans and not accounting for them. Nwegbo interrupted him and told him to stop reading because the borough was already being sued and he was putting the borough at risk. Nwegbo dep at 16:20-17:4. Nwegbo stated that Ford "made a statement such tell me - that he was just rude, implying, said tell me to shut up. If you know you're the man, tell me to shut up. And I said, "Mr. Ford, can you shut and sit down.'" Nwegbo stated that at that point Ford jumped up from where he was sitting and lunged towards him. He went past Prey and the solicitor stood and used his hands to shield Nwegbo. Id. at 20.

Nwegbo claims that he went to Reed and told him that Ford was attempting to hurt an elected official. He alleges that Tonette Pray gave hand signals telling Ford to leave the building. Ford left the building after Reed walked with him, but Reed turned around and came back. Id. at 22. Nwegbo claims that Reed grabbed him and flipped him so he fell on the floor. After getting up, he returned to his seat. When he was returning to his seat, Cradock charged from the audience where he was sitting, grabbed him and threw him on an audience chair. He claims that Cradock was yelling "They said you're under arrest" and picked him up and slammed him on the windowsill. He claims that he fell on the floor a second time and that is when they started beating him. Nwegbo states that he thinks Cradock punched him in the head and they were kicking him in the ribs. Id. at 24-25. He testified that he never attempted to get away from Reed and did not fight him. Nwegbo testified that Pray did nothing and did not touch him. Id. at 27. He recalls that Cradock was on top of him with one knee on his ribs. Then, Officer Trevor Parham came in and handcuffed him and took him to the police station. He remained handcuffed at the station until he received a citation, which he refused to sign. He had a bruise above his left eye, his shoulders were hurting and he had sharp pains in his ribs. When he went outside, he was limping and Officer Drucket asked him if he was ok. He asked for an ambulance and was transported to Fitgerald Mercy Hospital where he was treated for his injuries.


Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Williams v. Borough of West Chester , 891 F.2d 458, 463-464 (3d Cir. 1989). A factual dispute is "material" only if it might affect the outcome of the case. Anderso v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). For an issue to be "genuine", a reasonable fact finder must be able to return a verdict (or render a decision) in favor of the non-moving party. Id . On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative. Brewer v. Quaker State Oil Refining Co. , 72 F.3d 326, 331 (3d Cir. 1995). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 994 (1962); Tigg Corp. v. Dow Corning Corp. , 822 F.2d 358, 361 (3d Cir. 1987); Baker v. Lukens Steel Co. , 793 F.2d 509, 511 (3d Cir. 1986). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. at 255.

Notably, however, Rule 56(e) sets forth the burden of the nonmoving party as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule must set forth the specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed.R.Civ.P. 56(e). See Roa v. City of Bethlehem , 782 F.Supp. 1008, 1014 (E.D. Pa. 1991) (a party resisting a motion for summary judgment must specifically identify evidence of record which supports her claim and upon which a verdict in her favor may be based.) With respect to an issue on which the non-moving party has the burden of proof, the burden on the moving party may be discharged by "showing" - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett , 477 U.S. at 325.


Section 1983

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-2255 (1988). Section 1983 does not provide substantive rights, "but provides a vehicle for vindicating the violation of rights created by the United States Constitution or federal law." See Graham v. Connor , 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870 (1989); Morse v. Lower Merion School Dist. , 132 F.3d 902, 907 (3d Cir.1997). Thus, in order to succeed on the § 1983 claims, Plaintiff must demonstrate that the defendants (1) were acting under color of state law, and (2) while acting as such, deprived them of a constitutional or federal right. Id . In this case, it is not disputed that the defendants were acting under the color of state law. Nwegbo's § 1983 claims include allegations that his Fourth and First Amendment rights were violated.

Qualified Immunity

The doctrine of qualified immunity shields government officials "for liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Restated more precisely, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness' of the action assessed in light of the legal rules that were clearly established' at the time it was taken." Anderson v. Creighton , 483 U.S. 635, 639 (1987) quoting Harlow , 457 U.S. at 818-819; see also Pro v. Donatucci , 81 F.3d 1283 (3d Cir. 1996). The availability of qualified immunity as a defense is a question of law. Siegert v. Gilley , 500 U.S. 226, 232, 111 S.Ct. 1789 (1991).

The qualified immunity analysis breaks down into two issues. First, the court must determine whether the facts, taken in the light most favorable to the plaintiff, show a constitutional violation. If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end and the officer is entitled to immunity. Bennett v. Murphy , 274 F.3d 133, 136 (3d Cir. 2002). Once it is determined that evidence of a constitutional violation has been adduced, courts evaluating a qualified immunity claim must proceed to the second step and decide whether the constitutional right was clearly established. Id . In other words, the reviewing court must query whether, in the factual scenario established by the plaintiff, a reasonable officer would have understood that his actions were prohibited. Id. at 136. "If it would not have been clear to a reasonable officer what the law required under the facts alleged, he is entitled to qualified immunity." Id . If, on the other hand, the requirements of the law would have been clear, the officer must stand trial. Id.

A. Fourth Amendment-Malicious Prosecution, False Arrest, False Imprisonment

The absence of probable cause is required to sustain an action for malicious prosecution, and for his claims of false arrest and false imprisonment resulting from that arrest. See Johnson v. Knorr , 477 F.3d 75, 81-82 (3d Cir.2007) McNeil v. City of Easton , 694 F.Supp.2d 375, 390 (E.D. Pa. 2010) (citing Murphy v. Bendig, 232 Fed.Appx. 150, 153 (3d Cir.2007); Pulice v. Enciso , 39 Fed.Appx. 692, 696 (3d Cir.2002); see Startzell v. City of Philadelphia , 533 F.3d 183, 203-204 (3d Cir.2008); Groman v. Township of Manalapan , 47 F.3d 628, 634-636 (3d Cir.1995)). Defendants Pray and Reed argue that Nwegbo's claims of malicious prosecution, false arrest, and false imprisonment must all be dismissed because there was ...

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