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Giordano v. Murano-Nix

United States District Court, Third Circuit

January 7, 2014



MARY A. McLAUGHLIN, District Judge.

This action arises out of Anthony Giordano's arrest on December 16, 2010, for various theft-related crimes. The arrest warrant was based on a police report and affidavit of probable cause drafted by Detective Margarita Moreno-Nix, [1] which was in turn based on statements from Mr. Giordano's mother. Mr. Giordano argues that his mother's statements are false. The plaintiff was held in custody for approximately twenty-four hours. The criminal charges against Mr. Giordano were withdrawn on December 8, 2011.

The plaintiff brought suit against both Detective Moreno-Nix and R. Seth Williams, the Philadelphia District Attorney, [2] alleging that his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution were violated during the execution of the arrest warrant. The plaintiff also brought claims under Pennsylvania tort law, alleging assault and battery, negligence and gross negligence, malicious prosecution and malicious abuse of process of law, false arrest and false imprisonment, negligent infliction of emotional distress, and intentional infliction of emotional distress.[3] The plaintiff's claims were asserted against Detective Moreno-Nix both in her official capacity and in her individual capacity. Defendant Moreno-Nix has moved for summary judgment. For the following reasons, the Court will now grant the defendant's motion for summary judgment in its entirety.

I. Factual Background[4]

A. Detective Moreno-Nix

The defendant, Detective Margarita Moreno-Nix, has been employed with the Philadelphia Police Department since 1989 and has served as a detective for seventeen years. Def.'s Mot., Ex. A ("Moreno-Nix Aff."), ¶¶ 1-3. She has investigated crimes against the elderly in Philadelphia for seven years. Id . ¶ 4.

B. Interview with Norma Giordano and Patricia Duffy

In early to mid-January 2010, Norma Giordano reported to Detective Moreno-Nix that her son, Anthony Giordano, had stolen her home and all her belongings. Moreno-Nix Aff. ¶ 5; see also Def.'s Mot., Ex. B ("Mar. 18, 2010 Investigation Report"); Pl.'s Opp., Ex. C ("Jan. 15, 2010 Taped Interview with Norma Giordano").[5]

On January 15, 2010, Detective Moreno-Nix met with Norma Giordano and her daughter, Patricia Duffy. Moreno-Nix Aff. ¶ 7; see also Mar. 18, 2010 Investigation Report; Jan. 15, 2010 Taped Interview with Norma Giordano. This meeting was the defendant's first contact with any member of the Giordano family, including the plaintiff's father, Joseph Giordano, who was a police officer with the Philadelphia Police Department. Moreno-Nix Aff. ¶¶ 8-11.

Ms. Giordano reported that shortly after her husband passed away in early 2007, her son, the plaintiff, had her sign some documents immediately after awakening. She did not realize what documents she was signing, but she trusted her son. She discovered later that she had transferred the deed to her home to her son's name. Moreno-Nix Aff. ¶¶ 12-13; Jan. 15, 2010 Taped Interview with Norma Giordano.

Anthony Giordano and his wife periodically lived with Ms. Giordano after the death of her husband. Ms. Giordano felt threatened, intimidated, and uncomfortable in her home with the plaintiff there. For example, the plaintiff punched the headboard on Ms. Giordano's bed, breaking bones in his hand. Ms. Giordano also felt that her son tried to keep her away from her daughter. Ms. Giordano eventually moved out of her home and to her daughter's home. Moreno-Nix Aff. ¶¶ 14-15, 18; Jan. 15, 2010 Taped Interview with Norma Giordano.

Ms. Giordano reported to Detective Moreno-Nix several ways in which she was financially harmed by her son. He had sold her house, containing most of her belongings, without her knowledge. He removed several gold coins from her safety deposit box. He changed the beneficiaries of her investment account, and he caused an annuity to be cashed out, resulting in a loss of money. Furthermore, Ms. Giordano reported that her son had taken several burial plots she purchased, and as a result, she could not be buried next to her husband. Moreno-Nix Aff. ¶¶ 17, 19-23; Jan. 15, 2010 Taped Interview with Norma Giordano.

Ms. Giordano provided Detective Moreno-Nix with a handwritten, signed statement that she drafted in 2009 because she was concerned about her poor health. Moreno-Nix Aff. ¶¶ 24-25; Def.'s Mot., Ex. C ("2009 Statement by Norma Giordano"). Detective Moreno-Nix recorded the interview in January 2010 because of similar concerns about Ms. Giordano's health. Moreno-Nix Aff. ¶ 26; Jan. 15, 2010 Taped Interview with Norma Giordano. This handwritten statement corroborated Ms. Giordano's verbal statement.

During the taped interview, Ms. Giordano answered several questions with responses that she was not sure of the answer or that she did not know certain information. Ms. Giordano's daughter, Patricia Duffy, was also present at this interview. Ms. Duffy assisted Ms. Giordano in answering a few questions, and she was also asked some questions directly by Detective Moreno-Nix. Ms. Duffy's answers helped Ms. Giordano refresh her recollection on some issues. Jan. 15, 2010 Taped Interview with Norma Giordano.

C. Further Investigation by Detective Moreno-Nix

After meeting with Ms. Giordano, Detective Moreno-Nix investigated Ms. Giordano's allegations and sought documentation that would substantiate or undermine Ms. Giordano's claims. Moreno-Nix Aff. ¶¶ 27-28.

Detective Moreno-Nix investigated the times the police had been called to the address where Ms. Giordano lived with her son. She was able to conclude that several domestic incidents had been reported from that address, including the one in which Mr. Giordano injured his hand. Moreno-Nix Aff. ¶ 29; Def.'s Mot., Ex. D ("Moreno-Nix Notes").

The defendant investigated the dates on which Ms. Giordano had signed financial documents, and she found that Ms. Giordano had signed a document in February 2007 that made the plaintiff the sole beneficiary of her Police and Fire Credit Union account. Def.'s Mot., Ex. E ("Feb. 7, 2007 Beneficiary Information"). The defendant reviewed paperwork, including a letter from Ms. Giordano's physician, describing Mr. Giordano's attempt to have Ms. Giordano declared incompetent. Def.'s Mot., Ex. F ("Nov. 28, 2008 Neurological Associates Letter"). Documents also demonstrated that Mr. Giordano had accessed his mother's safety deposit box in January 2008. Def.'s Mot., Ex. G ("Jan. 31, 2008 Surrender Form"). Detective Moreno-Nix investigated checks written to Mr. Giordano by his mother over a two-year period, totaling $47, 635. Lastly, Detective Moreno-Nix confirmed that Ms. Giordano's home had, in fact, been sold. Moreno-Nix Aff. ¶¶ 30-34.

D. Affidavit of Probable Cause and Arrest Warrant

As a result of her investigation, Detective Moreno-Nix determined that the documentary evidence corroborated the written and verbal allegations made by Norma Giordano, and she drafted an affidavit of probable cause that reflected the statements made by Ms. Giordano. Moreno-Nix Aff. ¶¶ 35-36.

Detective Moreno-Nix submitted a draft arrest warrant and a draft affidavit of probable cause to the District Attorney's Office Charging Unit, in which she included charges against Mr. Giordano of forgery, theft by unlawful taking, theft by deception, identity theft, tampering with records, and securing execution. Attorneys at the District Attorney's Office added an additional charge of "recordable instruments." Moreno-Nix Aff. ¶ 37.

Once the Charging Unit had reviewed and edited the charges, the defendant swore out the final affidavit. A bail commissioner reviewed the affidavit and issued an arrest warrant for Anthony Giordano. Moreno-Nix Aff. ¶ 38; Def.'s Mot., Ex. H ("Affidavit of Probable Cause").

E. Execution of Arrest Warrant

Detective Moreno-Nix requested assistance from the SWAT team in executing the arrest warrant because she thought the number of guns owned by Anthony Giordano posed a potential threat to officer safety. Moreno-Nix Aff. ¶ 39.

The plaintiff described his experience of the arrest in interviews with the Philadelphia Police Internal Affairs Department. He said the police pounded on his door around 6:00 am on December 16, 2010. A police van was outside, and the man at the door was dressed in black. Several officers yelled at Mr. Giordano to get down when he opened the door, and one pointed a gun at him. The plaintiff described that several officers refused to tell him and his wife why they were there. One female officer told him they were there because he stole his mother's property, and another demanded the combination to his safe. The police then took him to the Major Crimes Unit. Def.'s Mot., Ex. I ("Jan. 3, 2012 Statement of Anthony Giordano"), at 1-2.

Detective Moreno-Nix states in her affidavit that "[d]uring the execution of the warrant, I had no physical contact with Anthony Giordano." Moreno-Nix Aff. ¶ 40. The plaintiff's statements to the Philadelphia Police Internal Affairs Department corroborate Detective Moreno-Nix's statement. He complained to the Internal Affairs Department only of men that had offensive contact with him. Jan. 3, 2012 Statement of Anthony Giordano at 1-2; Def.'s Mot., Ex. J ("Feb. 3, 2012 Statement of Anthony Giordano"), at 1-3.

The plaintiff described being struck in the temple with a SWAT team member's submachine gun. Jan. 3, 2012 Statement of Anthony Giordano at 2; Feb. 3, 2012 Statement of Anthony Giordano at 2. He also described how his head was pushed down with the barrel of the gun. Jan. 3, 2012 Statement of Anthony Giordano at 1; Feb. 3, 2012 Statement of Anthony Giordano at 1-2.

The plaintiff suffered minimal injuries, however, as a result of the arrest. He stated that his injuries were "just a bruise on my thigh. I never went to the hospital. I'm not making a big deal about that." Furthermore, he never obtained any medical treatment for these injuries. Jan. 3, 2012 Statement of Anthony Giordano at 3. Mr. Giordano also alleges that he lost two days of work as a result of his arrest, although there is no evidence to substantiate this allegation in the record. Compl. ¶ 32.

F. Events Following Arrest and Citizen's Complaint

On December 19, 2011, Joseph Giordano, Anthony Giordano's brother, made a citizen's complaint against Officer J.J. Thompson. Pl.'s Opp., Ex. A ("Dec. 19, 2011 Criminal Complaint"). This exhibit contains a handwritten statement by Joseph Giordano, as well as a lengthy statement that appears to have been written by Anthony Giordano. This statement is not signed or verified.

The statement that the Court assumes was written by Anthony Giordano contains a description of events following his arrest, as well as several lists: guns owned by Anthony Giordano, rifles and long guns, handguns, ammunition, gun parts, ammunition storage magazines, and personal items taken. Id. at 31-38.[6]

Mr. Giordano arrived at the police station at 39th Street and Lancaster Avenue around 7:30 am on December 16, 2010. The police asked him where his Glock handgun was located. Mr. Giordano told the officer that it was sold legally six months ago, and the fact that the gun was sold was relayed to the officers still at his home. Id. at 23.

Mr. Giordano was moved to another police station around 10:00 am. At approximately 6:00 pm, Mr. Giordano took part in a videoconference pre-bail questionnaire. Around 2:00 am on December 17, 2010, Mr. Giordano attended his bail hearing via another videoconference. Mr. Giordano states that this is the first time that he was told some of the charges against him- namely, that he was being blamed for things taken from his mother. Bail was set and paid, and Mr. Giordano was released at 7:00 am on December 17, 2010. Id. at 23-25.

Mr. Giordano lists several events that occurred on the day of his arrest and following his arrest. His wife was told that she would receive a list of everything taken from the home. The plaintiff states he ...

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