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Kitko v. Young

United States District Court, Third Circuit

September 20, 2013

CAMERON J. KITKO, Plaintiff,
v.
RANDALL YOUNG, in his individual capacity, Defendant.

MEMORANDUM AND ORDER OF COURT

KIM R. GIBSON, District Judge.

I. SYNOPSIS

This matter comes before the Court on Defendant's Motion for Summary Judgment (Doc. No. 110). Defendant seeks summary judgment on the sole remaining count (Count II) of Plaintiffs Second Amended Complaint (Doc. No. 45), which asserts a claim against Defendant Young pursuant to 42 U.S.C. § 1983 for a violation of Plaintiffs Fourth Amendment rights. Plaintiff opposes the Motion. (See Doc. No. 116). For the reasons set forth below, the Court will GRANT Defendant's Motion.

II. JURISDICTION AND VENUE

Jurisdiction is proper pursuant to 42 U.S.C. §§ 1331 and 1343. Venue is proper pursuant to 42 U.S.C. § 1391(b).

III. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a series of events leading to the application for and execution of a warrant to search Plaintiff Cameron J. Kitko's ("Plaintiff') residence in Punxsutawney, Pennsylvania ("Plaintiffs residence"), on February 3, 2010. The facts that follow are undisputed or construed in the light most favorable to Plaintiff as the non-moving party. Facts insufficiently denied and not otherwise controverted, however, have been deemed admitted per Local Civil Rule of Court ("Local Rule") 56E.[1]

Walter Kitko ("Walter"), Plaintiffs brother, and Lisa Rossi ("Rossi") began a secret relationship in 2003 or 2004. (Doc. No. 118 at 1 ¶ 1; Doc. No. 119-6 at 18:5-16; Doc. No. 123 at 2).[2] This relationship continued until approximately 2009. (Doc. No. 119-6 at 18:5-18; Doc. No. 112 at 5 ¶ 41). Because of the secret nature of the relationship, Walter and Rossi met at various locations. (Doc. No. 118 at 5 ¶ 13; Doc. No. 119-9 at 32:4-21). One such location at which Walter and Rossi met many times during the course of their relationship was Plaintiffs residence in Punxsutawney, Pennsylvania. (Doc. No. 118 at 1 ¶ 2; Doc. No. 119-6 at 25:15-26:10; Doc. No. 123 at 2; Doc. No. 112 at 6 ¶ 44). Walter resided with Plaintiff, Walter's brother, at Plaintiffs residence for approximately two to three years, until late July 2008 (Doc. No. 119-9 at 7:8-8:11; Doc. No. 118 at 7; Doc. No. 123 at 2). Walter used Plaintiffs residence as his primary residence during this period. (Doc. No. 112 at 5 ¶ 43; Doc. No. 113-4 at 12:20-22). Walter and Rossi did not meet at Plaintiffs residence after July 2008, (Doc. No. 118 at 1 ¶ 3; Doc. No. 119-9 at 33:1-11), but their relationship continued until July 2009 (see Doc. No. 118 at 5 ¶ 14; Doc. No. 119-9 at 11:19-12:9; cf. Doc. No. 112 at 5 ¶ 41).

On September 29, 2009, Officer Randall J. Young ("Officer Young" or "Defendant"), a police officer for the City of Dubois, Clearfield County, Pennsylvania, (Doc. No. 112 at 8 ¶ 64; Doc. No. 113-9 at 4:10-12; 22:10-12) was dispatched by Clearfield County Control to contact Rossi who complained that she was being harassed and stalked by Walter Kitko, Plaintiffs brother (Doc. No. 112 at 1 ¶ 1; Doc. No. 118 at 1 ¶ 1). Rossi informed Officer Young that Walter, Rossi's ex-boyfriend, had been harassing her via voicemail and text messages left on Rossi's cell phone after Rossi advised Walter that she did not want to have any further contact with him. (Doc. No. 112 at 1 ¶ 2; Doc. No. 118 at 1 ¶ 1).

From July 2009 to September 29, 2009, Walter used a phone number with an 814 area code and the last two digits of 11 ("phone number 814-xxx-xx 11") to contact Rossi with harassing messages. (Doc. No. 112 at 1 ¶ 4; Doc. No. 118 at 1 ¶ 1). Rossi showed Officer Young the text messages she received from Walter. (Doc. No. 112 at 1 ¶ 3; Doc. No. 118 at 1 ¶ 1). Officer Young attempted to contact Walter at phone number 814-xxx-xx11 on September 29, 2009, and left a message for Walter to contact him. (Doc. No. 112 at 1 ¶ 6; Doc. No. 118 at 1 ¶ 1). After September 29, 2009, Walter began using a phone number with an 814 area code and the last two digits of 14 ("phone number 814-xxx-xx14") to send messages to Rossi. (Doc. No. 112 at 1 ¶ 5; Doc. No. 118 at 1 ¶ 1).

On October 8, 2009, Rossi informed Officer Young that she received another message from Walter. (Doc. No. 112 at 2 ¶ 7; Doc. No. 118 at 1 ¶ 1). Officer Young again called Walter and left a message informing Walter not to contact Rossi or else he would be arrested. (Doc. No. 112 at 2 ¶ 8; Doc. No. 118 at 1 ¶ 1). After Officer Young attempted to contact Walter in October 2009, Walter began contacting Rossi solely from a cell phone number with a 585 area code and the last two digits of 91 ("phone number 585-xxx-xx91"). (Doc. No. 118 at 1-2 ¶ 4; Doc. No. 123 at 3). Although this number had a New Jersey area code, Rossi knew this cell phone belonged to Walter. (Doc. No. 118 at 2 ¶ 5; Doc. No. 119-6 at 31:8-13; Doc. No. 123 at 3). On November 15, 2009, Officer Young was again dispatched to speak with Rossi. (Doc. No. 112 at 2 ¶ 9; Doc. No. 118 at 1 ¶ 1). Rossi advised Officer Young that she received a text message[3] from phone number 585-xxx-xx91 that depicted her naked from the waist up. (Doc. No. 112 at 2 ¶ 9; Doc. No. 118 at 1 ¶ 1). Rossi told Officer Young that she never gave anyone, including Walter, permission to take nude or partially nude pictures of her. (Doc. No. 112 at 2 ¶ 10; Doc. No. 118 at 1 ¶ 1).

On November 19, 2009, Rossi informed Officer Young that pictures depicting Rossi naked from the waist up were sent to her ex-husband's cell phone from Walter's phone number 585-xxx-xx91. (Doc. No. 112 at 2 ¶ 11; Doc. No. 118 at 1 ¶ 1). Officer Young subsequently met with Rossi and her ex-husband at the Dubois City Police station where they showed Officer Young pictures that had been sent to their cell phones after Rossi advised Walter that she did not wish to have any further contact with him. (Doc. No. 112 at 2 ¶ 12; Doc. No. 118 at 1 ¶ 1). Officer Young also listened to voicemail messages Walter left for Rossi. (Doc. No. 112 at 2 ¶ 13; Doc. No. 118 at 1 ¶1). In one such message, Walter told Rossi that "he would snap someone's neck[, ] that he was pissed, that he would take it out and there would be a lot of sorry people." (Doc. No. 112 at 2 ¶ 13; Doc. No. 113-1 at 4; Doc. No. 118 at¶ 1). In these messages, Walter told Rossi that "he was going to kill someone starting in the morning." (Doc. No. 112 at 2 ¶ 13; Doc. No. 118 at¶ 1; Doc. No. 113-1 at 4). In another message, Walter stated that "he would repay everybody" and would make both Rossi and her ex-husband pay. (Doc. No. 112 at 2 ¶ 14; Doc. No. 118 at¶ 1). Rossi informed Officer Young that she had sent another message to Walter advising him to stop contacting her. (Doc. No. 112 at 2 ¶ 15; Doc. No. 118 at¶ 1).

Between November 21, 2009, and December 5, 2009, Rossi's ex-husband received four separate picture messages from phone number 585-xxx-xx91 depicting Rossi naked from the waist up. (Doc. No. 112 at 3 ¶ 16; Doc. No. 118 at 1 ¶ 1; Doc. No 113-1 at 4). Officer Young prepared an Application for Order to subpoena the records and subscriber information for cell phone numbers 814-xxx-xx11 and 814-xxx-xx14. (Doc. No. 112 at 3 ¶ 17; Doc. No. 113-1 at 5). Judge Paul Cherry approved the Application on December 7, 2009, and the Application was thereafter served on Verizon. (Doc. No. 112 at 3 ¶ 18; Doc. No. 113-1 at 5).

On December 10, 2009, Rossi's ex-husband showed Officer Young another picture message he received from phone number 585-xxx-xx91. (Doc. No. 112 at 3 ¶ 19; Doc. No. 118 at 1 ¶ 1). This message also showed Rossi naked from the waist up. (Doc. No. 112 at 3 ¶ 19; Doc. No. 118 at 1 ¶ 1). Approximately four and a halfweeks later on January 1, 2010, Rossi's ex-husband informed Officer Young that he received another picture message from phone number 585-xxx-xx91. (Doc. No. 112 at 3 ¶ 20; Doc. No. 118 at 1 ¶ 1). This message showed Rossi giving oral sex to a male. (Doc. No. 112 at 3 ¶ 20; Doc. No. 118 at 1 ¶ 1). Three days later, on January 4, 2010, Officer Young received information from Verizon that the owner information for cell phone 814-xxx-xx11 belonged to Walter Jim' Kitko and cell phone number 814-xxx-xx14 belonged to Jim Kitko. (Doc. No. 112 at 3 ¶ 21; Doc. No. 118 at 1 ¶ 1). The address listed for both cell phone accounts was the Plaintiffs address in Punxsutawney, Pennsylvania. (Doc. No. 112 at 3 ¶ 21; Doc. No. 118 at 1 ¶ 1). Officer Young then prepared a second Application for Order to subpoena the records and subscriber information for phone number 585-xxx-xx91; the Order was signed by Judge Cherry and sent to Verizon. (Doc. No. 112 at 3 ¶ 22; Doc. No. 118 at 1 ¶ 1; Doc. No. 113-1 at 5). Records for phone number 585-xxx-xx91 showed that the owner information for the number belonged to "OAS phone in the box." (Doc. No. 112 at 3 ¶ 23; Doc. No. 118 at 1 ¶ 1; Doc. No. 113-1 at 5).

On January 22, 2010, Officer Young met again with Rossi. (Doc. No. 112 at 4 ¶ 24; Doc. No. 118 at 2 ¶ 5). Rossi advised Officer Young that, in the past, Walter had mentioned to her that Walter wanted to take videos/pictures of her while she was naked and/or having sex. (Doc. No. 112 at 4 ¶ 24; Doc. No. 118 at 2 ¶ 5). Rossi informed Officer Young that she told Walter she would not allow any such video or picture taking. (Doc. No. 112 at 4 ¶ 25; Doc. No. 118 at 2 ¶ 5). Rossi advised Officer Young that Walter told her that he had purchased surveillance equipment and could videotape Rossi without her knowledge.[4] (Doc No. 112 at 4 ¶ 26). Rossi never saw any surveillance equipment. (Doc. No. 118 at 3 ¶ 6(e); Doc. No. 119-6 at 38:8-10).

Rossi informed Officer Young that Walter carried a backpack around but that Walter would not let her see what was in the backpack. (Doc. No. 112 at 4 ¶ 27; Doc. No. 124-1 at 39:24-40:10, 40:25-41:2, 53:12-24). Rossi further informed Officer Young that she had sex with Walter at Plaintiffs residence and may have had oral sex with Walter in the bedroom of the house. (Doc. No. 112 at 4 ¶ 28, 6 ¶ 45). Walter took nude photographs of Rossi at the Plaintiffs residence with a camera he kept there (Doc. No. 112 at 6 ¶¶ 49-50; Doc. No. 113-4 at 18:22-19: 10). Rossi could not tell where the photographs were taken based on the images themselves (Doc. No. 118 at 3 ¶ 6(d); Doc. No. 119-6 at 23:3-19).

Rossi reported to Officer Young that Walter lived at an address in Anita, Pennsylvania ("Walter's residence"). (Doc. No. 112 at 4 ¶ 29). Rossi told Officer Young that Walter had informed her that he owned Plaintiffs residence and that Walter permitted his brother-the Plaintiff-to live there. (See Doc. No. 112 at 4 ¶ 30, 7 at ¶ 61; Doc No. 113-8 at 52:20-22; Doc. No. 124-1 at 42:4-17, 60:11-17). Walter had a bedroom at the Plaintiffs residence when he lived there (Doc. No. 112 at 5 ¶ 42; Doc. No. 113-4 at 12:10-16), and Rossi had no reason to believe that Walter did not own the Plaintiffs residence (Doc. No. 112 at 7 ¶ 62; Doc. No 113-8 at 55:19-56:1). Rossi informed Officer Young that she had sexual relations with Walter at the Plaintiffs residence. (Doc. No. 112 at 4 ¶ 31). Rossi never stayed overnight at the Plaintiffs residence. (See Doc. No. 119-6 at 44:7-45:4).[5]

Walter's residence in Anita, Pennsylvania was for sale at the time Officer Young applied for the warrant to search Plaintiffs residence, and Officer Young believed that Walter kept custody of his phones and account information at Plaintiffs residence during this time. (Doc. No. 112 at 4 ¶ 32; Doc. No. 113-1 at 6). On February 3, 2010, Officer Young prepared an Application for Search Warrant with Affidavit of Probable Cause.[6] The items to be searched for and seized included cell phones and any account information or documentation for cell phone numbers 814-xxx-xx11, 814-xxx-xx14, 585-xxx-xx91; naked or partially naked photographs of Rossi; any video tapes or digital movies of Rossi; and any devices that could be used for storage of any such electronic information. (Doc. No. 112 at 5 ¶ 34; Doc. No. 113-1 at 2, 8). The search warrant was approved by the local magistrate judge in Punxsutawney, Jefferson County, Pennsylvania. (Doc. No. 112 at 5 ¶ 36; Doc. No. 113-1 at 2). The search warrant was executed in Jefferson County, Pennsylvania. (Doc. No. 112 at 8 ¶ 65; see Doc. No. 118 at 3-5 ¶¶ 7-8, 10-12; Doc. No. 113-9 at 22:15-23). Officer Young did not participate in the execution of the warrant at the Plaintiffs residence. (Doc. No. 112 at 8; Doc. No. 118 at 5 ¶ 12, 8 ¶ 22; Doc. No. 113-9 at 30:10-20). Computers, cameras, and other electronic equipment were seized from the Plaintiffs residence. (Doc. No. 112 at 5 ¶ 39; Doc. No. 113-3 at 2). Walter was charged with several offenses (see Doc. No. 112 at 6 ¶ 47; Doc. No. 118 at 6 ¶ 16; Doc. No. 113-10) and pleaded guilty to three counts of invasion ofprivacy (Doc. No. 112 at 6 ¶ 48; Doc. No 118 at 6 ¶ 16; Doc. No. 113-4 at 18:4-8).

Plaintiff filed a Complaint in this matter on July 16, 2010. (Doc. No.1). Plaintiff filed his Second Amended Complaint (Doc. No. 45) on February 14, 2011. The Court has accepted Doc. No. 45 as Plaintiffs Second Amended Complaint, but has construed Plaintiffs Second Amended Complaint (Doc. No. 45) to include the exhibits attached to Doc. Nos. 35 and 41 but omitted from Doc. No. 45.

On November 30, 2012, Defendant filed the instant Motion (Doc. No. 110) seeking summary judgment on Plaintiffs Second Amended Complaint. In support of the Motion, Defendant contemporaneously filed a Brief in Support (Doc. No. Ill) and a Concise Statement of Material Undisputed Facts ("CSMF") (Doc. No. 112) along with an appendix of supporting exhibits (Doc. No. 113). Plaintiff filed a Response (Doc. No. 116) opposing Defendant's Motion for Summary Judgment on December 28, 2012. On the same date, Plaintiff filed a Memorandum of Law in Support of Plaintiffs Opposition to Defendant's Motion for Summary Judgment (Plaintiffs "Brief in Opposition") (Doc. No. 117) and a Counter Concise Statement of Material Undisputed Facts (Plaintiffs "Responsive CSMF") (Doc. No. 118) along with an appendix of supporting exhibits (Doc. No. 119). Defendant filed a Reply Brief in Support of Motion for Summary Judgment (Defendant's "Reply Brief') (Doc. No. 123) and a supplemental appendix on January 11, 2013.

IV. LEGAL STANDARDS

A. Summary Judgment

"Summary judgment is appropriate only where... there is no genuine issue as to any material fact... and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a).[7] Issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court's role is "not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). "In making this determination, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp, 32 F.3d 768, 777 (3d Cir. 1994).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment "may not rest upon the mere allegations or denials" of the pleading but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there must be sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993).

B. 42 U.S.C. § 1983

A plaintiff may assert a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

To state a claim for relief under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

V. DISCUSSION

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that Officer Young violated Plaintiffs Fourth Amendment rights in connection with Officer Young's procurement of a search warrant for Plaintiffs home. Plaintiff asserts (1) that the warrant to search Plaintiffs residence was based upon an affidavit lacking in probable cause on its face[8] and (2) that the warrant affidavit contained material falsehoods and omissions. (See Doc. No. 117 at 15). Defendant contends (1) that the search of Plaintiffs residence was supported by probable cause based on the totality of the circumstances and the information known to the Defendant at the time he applied for and received approval for the search warrant, and (2) that the search warrant application was not defective because there is ...


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