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Pellegrino v. United States, Transportation Security Administration

United States District Court, E.D. Pennsylvania

April 16, 2014



J. CURTIS JOYNER, District Judge.

Before the Court are Defendants' Motion for Summary Judgment (Doc. No. 156) and Plaintiffs' Exhibits Filed Under Seal (Doc. No. 173).[1] For the reasons outlined in this Memorandum, it is hereby ORDERED that the Motion is GRANTED in part and DENIED in part.


On the evening of July 29, 2006, Plaintiff Nadine Pellegrino ("Pellegrino") and her husband Harry Waldman arrived at the Philadelphia International Airport (PHL) in order to catch a flight home to Florida. (Def. Mot. for Summary Judgment, Ex. A, Deposition of Nadine Pellegrino at 68). At the security checkpoint, Pellegrino was directed by a Transportation and Security Administration ("TSA") employee to step aside for further screening. Id. at 77. She had three bags with her: a rolling tote, a rolling bag that fit in the overhead compartment of the airplane, and a snap-on black canvas handbag. Id. at 72. A male TSA employee placed Pellegrino's bags on a search table and began to open one of them. Id. at 83. Pellegrino informed the employee that she desired a private screening. Id . In Pellegrino's mind, a private search did not mean a behind-closed-doors search; it meant a female to search her bags. Id. at 146.

Defendant Transportation Security Officer ("TSO") Nuyriah Abdul-Malik arrived at the checkpoint to complete Pellegrino's screening. Id. at 88-89. Abdul-Malik was wearing gloves when she arrived. Id. at 90. Believing that TSA screening procedures require TSOs to change their gloves upon request, Pellegrino requested that Abdul-Malik change her gloves before handling Pellegrino's luggage. Id. at 90-91. Abdul-Malik complied, but in the process physically contaminated the new set of gloves. Id. at 94. Pellegrino sees her request for the glove change as the catalyst for what she perceived as Abdul-Malik's ensuing "negative attitude" toward Pellegrino. Id. at 96.

Wearing her new gloves, Abdul-Malik then relocated Pellegrino's three bags to a private screening location, a thin-walled partitioned cubicle with a door. Id. at 96-98. In the screening room, Pellegrino and Abdul-Malik were joined by Defendant Laura Labbee ("Labbee"), a supervisor at the checkpoint, and Denise Kissinger ("Kissinger"), a TSO. Id. at 99-100. They closed the door behind them. Kissinger performed a swab of the front and back of Pellegrino's shirt. Id. at 101. Kissinger then left the room to test the samples. Id.

Abdul-Malik then examined the contents of Pellegrino's luggage. Id. at 102. Pellegrino maintains that Abdul-Malik's inspection was unduly thorough and rough. Id. at 102-104. She allegedly counted all of the currency and coins; examined the front and back of each of Pellegrino's membership, credit, and other cards; looked at Pellegrino's cellphone data; read her personal notes and rifled through her papers; and opened and smelled her cosmetics, hand sanitizer, mints, pen and lipstick. Id. at 102-104. Abdul-Malik also left open the lids to various containers, causing their contents to spill inside Pellegrino's bags and damage her property. Id.

Pellegrino informed Labbee that she planned to report the TSOs' treatment of her to TSA superiors. Abdul-Malik stood by passively as an observer while this occurred. Id. at 110.

Pellegrino further alleges that Abdul-Malik caused property damage when returning her belongings to the bags; she punched, jammed, and forced these items back into Pellegrino's luggage. Id. at 112-113. When attempting to close one bag, Abdul-Malik used her knee and body weight to compress the contents and forcibly yanked on the zipper, damaging the luggage in the process. Id. at 113. She also damaged jewelry and a pair of eye-glasses. Id. at 112. Abdul-Malik then placed the tote bag underneath the far back corner of the search table. Id. at 114. In response, Pellegrino demanded to know "what is going on here, both of you are behaving like bitches." Id. at 114. Pellegrino states that Abdul-Malik then asked Labbee to summon the police. Id. at 114. The police were not called at that time. Id. at 115.

Abdul-Malik then screened Pellegrino's larger rolling bag. Id. at 116. Pellegrino asked a few times to be able to repack her clothes, but was told she would have to wait until the end of the search. Id. at 118. Kissinger, who had re-entered the room, removed three pairs of shoes for swabbing. Id. at 118-119. Once the screening was complete, Labbee informed Pellegrino that she was free to pack her things and leave the screening area. Id. at 120-121. After asking Abdul-Malik if she was going to repack her shoes and receiving a negative response, id. at 122, Pellegrino proceeded to remove her items to a search table outside the private screening room. Id. at 123. As Pellegrino removed her items, TSOs Labbee and Abdul-Malik remained in the screening room. See id. at 125-129.

Pellegrino began by tossing her footwear from the threshold of the doorway to the search room onto the floor of the checkpoint, after checking to make sure there was no one in the immediate vicinity. Id. at 123-124. Pellegrino then carried her largest bag out of the screening room. Id. at 125. Due to the large size of the bag, Pellegrino had to carry it close to her chest and rotate it somewhat to navigate the doorway. Id. at 125; (Doc. No. 173, Pl. Ex. 187). Labbee avers that Pellegrino struck her in the stomach with the bottom of the bag as she was removing the bag from the room, an allegation corroborated by Kissinger (Def. Ex. B, Deposition of Denise Kissinger, at 145) but denied by Pellegrino. Pellegrino Dep. at 128. Labbee and Pellegrino were inside the private room when Labbee was struck, and Kissinger witnessed the event through the open door. Kissinger Dep. at 147. Pellegrino alleges that one or both of TSOs Labbee and Abdul-Malik disposed of three of Pellegrino's footwear covers into a trashcan without Pellegrino's permission. Pellegrino Dep. at 164.

Lastly, Pellegrino returned for her smaller rolling bag. Id. at 126. Pellegrino maintains that Abdul-Malik blocked her access to the bag, forcing Pellegrino to crawl under the table on her hands and knees to reach it and then roll it out of the room. Id. at 126. As Pellegrino grabbed the strap of the bag, the bag tipped over, striking the ground with a loud noise. Id . Abdul-Malik asserts that Pellegrino struck her in the leg in the process of collecting the bag, which Pellegrino denies. Id. at 128. As she left the room, Pellegrino avers that she heard Abdul-Malik and Labbee say to each other that they had been assaulted by Pellegrino. Id. at 128. Pellegrino heard them each say to one another, "you saw her hit me, didn't you?" and then confirm the answer. Id. at 150.

Labbee then informed Abdul-Malik that Labbee intended to press charges, and asked Abdul-Malik if she wanted to do so as well. (Doc. No. 173, Pl. Ex. 167). Abdul-Malik answered that she did want to press charges and walked with Labbee to the supervisor's station to do so. Id.

While Pellegrino repacked her bags at the checkpoint search table, Labbee directed her to stay at the checkpoint while the police were summoned. Id. at 129. Pellegrino requested that the TSA official in charge at PHL be called to the checkpoint, but her request went unheeded. Id . Labbee confiscated Pellegrino's driver's license, id., and responding police officers arrested Pellegrino. Pellegrino did not hear what was said to the arresting officers prior to her arrest. Id. at 136-137. Abdul-Malik and Labbee, but not Kissinger, swore out criminal complaints against Pellegrino. (Doc. No. 173). Kissinger wrote out a witness statement to the police corroborating the allegation that Pellegrino struck Labbee with her bag. Kissinger Dep. 145, 169, 179-80. The Incident Reports of the arresting Philadelphia police officer note that Abdul-Malik and Labbee reported being struck by Pellegrino's bags and the shoes she had tossed out of the private room, and that they suffered from a stomach bruise and leg pain as a result. See (Doc. No. 173). The police officer frisked Pellegrino in the private screening room, handcuffed her, and escorted her out of the airport in view of other passengers. Pellegrino Dep. at 154.

Pellegrino was initially charged with ten criminal violations, including felony aggravated assault, and misdemeanor charges of possessing instruments of a crime, making terroristic threats, simple assault, and recklessly endangering another person. (Def. Mot. at 6 n. 2). Pellegrino's husband posted a $400 bond and Pellegrino was released roughly eighteen hours later. Pellegrino Dep. at 158. Two felony counts were dismissed shortly thereafter. (Def. Mot. at 6).

In August 2006, Pellegrino was informed by letter that the TSA was considering imposing a civil penalty for her actions on June 29, 2006. Id. at 159; (Def. Ex. C). Pellegrino retained an attorney, who asked that evidence be preserved by the TSA. (Def. Ex. D). The TSA informed Pellegrino and the Philadelphia Municipal Court presiding over the criminal charges that no video recording of the June 29, 2006 events existed. (Def. Exs. E, F). As a result, the presiding judge ruled that no witnesses could testify to matters that occurred outside the screening room, because no video of those events had been preserved. (Def. Ex. F). The jury entered not guilty verdicts as to the charges against Pellegrino on March 28, 2008. (Third Amended Complaint, Doc. No. 34 at 24 n. 73; Def. Mot. at 7). The present civil action was commenced before this Court on November 18, 2009. (Doc. No. 1).


In deciding a motion for summary judgment under Rule 56(c), a court must determine "whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins , 198 F.3d 100, 103 (3d Cir. 1999) (internal citation omitted).

In deciding a motion for summary judgment, all facts must be viewed and all reasonable inferences must be drawn in favor of the non-moving party. Troy Chemical Corp. v. Teamsters Union Local No. 408 , 37 F.3d 123, 125-26 (3d Cir. 1994); Oritani Savings & Loan Assn. v. Fidelity & Deposit Co. of Md. , 989 F.2d 635, 638 (3d Cir. 1993). An issue of material fact is said to be 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).

In Celotex Corp. v. Catrett , 477 U.S. 317, 322-32 (1986), the Supreme Court held that Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). This does not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Id . Rather, Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the required showing that a genuine issue of material fact exists. Id .; see also Morgan v. Havir Mfg. Co. , 887 F.Supp. 759 (E.D. Pa. 1994); McGrath v. City of Phila. , 864 F.Supp. 466, 472-73 (E.D. Pa. 1994).


Pellegrino brings claims against the United States for property damage, false arrest and false imprisonment, malicious prosecution, and civil conspiracy under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). She also brings claims against Defendants Abdul-Malik and Labbee in their individual capacities for retaliatory prosecution under the First Amendment, malicious prosecution under the Fourth Amendment, as well as conspiracy to engage in malicious prosecution. The Court analyzes each of these in turn below.


1. Section 2680(h)'s law enforcement proviso

The FTCA partially abrogates the sovereign immunity of the United States and provides an avenue for tort claims for the wrongful conduct of federal employees. See 28 U.S.C. § 2671 et seq. Under § 2680(h) of the Act, which is at issue here, the United States generally preserves its immunity for charges of assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution. See 28 U.S.C. § 2680(h). However, the U.S. has waived its sovereign immunity in instances when these claims are brought against "investigative or law enforcement officers of the United States Government." Id . An investigative or law enforcement officer is defined in the statute as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id . Defendants maintain, as they did at the motion to dismiss stage, that TSA employees like Abdul-Malik and Labbee do not fall within this "law enforcement proviso" to § 2680(h), and their conduct is immunized from suit.

The Court will begin its analysis with the language of the statute - if the statute's meaning is unambiguous, the Court need not inquire further. In re Phila Newspapers, LLC , 599 F.3d 298, 304 (3d Cir. 2010); Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 254 (1992). As the Supreme Court has noted regarding the FTCA, "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis." Dolan v. U.S. Postal Service , 546 U.S. 481, 492 (2006). When interpreting an exception to the FTCA, "the proper objective of a court... is to identify those circumstances which are within the words and reason of the exception - no less and no more." Id . Moreover, the general rule that "a waiver of the Government's sovereign immunity will be strictly construed" is not applicable in the FTCA context. Id. at 491-92.

First, the Court considers whether TSOs are "empowered by law to execute searches... for violations of Federal law." The Court finds the phrase "searches... for violations of Federal law" to be ambiguous in the statute. If Congress intended "search" in § 2680(h) to be synonymous with "search" within the meaning of the Fourth Amendment, then TSA screeners are undoubtedly "empowered by law to execute searches, " because it is well-established that airport screenings are Fourth Amendment searches, justified under the administrative exception to the warrant requirement. U.S. v. Hartwell , 436 F.3d 174, 178 (3d Cir. 2006). The District Court for the District of Arizona recently articulated just that - because "airport screenings are searches" within the meaning of the 4th Amendment, and TSA agents are authorized to conduct screenings, "there is no question that TSA agents are empowered by law to execute searches.'" Armato v. United States, No. 11-2462, Order of May 15, 2012, at 5 (D. Ariz. 2012).[2]

However, if Congress intended the "searches... for violations of Federal law" executed by "investigative or law enforcement officers" not to be coextensive with all searches under the Fourth Amendment, then TSA screeners may not fall within the law enforcement proviso. Such a view was espoused in Walcott v. United States, in which the District Court for the Eastern District of New York concluded that "the meaning of empowered by law to execute searches... for violations of Federal law' under § 2680(h) is narrower than the meaning of a search' under the Fourth Amendment - that is, just because something is an administrative search under the Fourth Amendment, it ...

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