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Berrios v. City of Philadelphia

United States District Court, E.D. Pennsylvania

March 31, 2015

LUIS BERRIOS, Plaintiff,
v.
CITY OF PHILADELPHIA et al., Defendants

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For LUIS A. BERRIOS, III, Plaintiff: RANIA MAJOR TRUNFIO, LEAD ATTORNEY, PHILADELPHIA, PA; LOREN T. FINESMITH, PHILADELPHIA, PA.

For CITY OF PHILADELPHIA, POLIC OFFICER MICHAEL GENTILE, BADGE NO. 4548, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CITY OF PHILADELPHIA POLICE OFFICER, POLICE OFFICER ROBERT TAVAREZ, BADGE NO. 4402, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CITY OF PHILADELPHIA POLICE OFFICER, DETECTIVE JOSEPH NEWBERT, BADGE NO. 8021, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CITY OF PHILADELPHIA POLICE DETECTIVE, Defendants: MICHAEL R. MILLER, REGINA LAWRENCE, LEAD ATTORNEYS, CITY OF PHILADELPHIA LAW DEPT, PHILADELPHIA, PA.

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MEMORANDUM

C. Darnell Jones, II, J.

In his Amended Complaint, (Dkt No. 4, Amended Complaint [hereinafter AC]), Luis A. Berrios, III (" Plaintiff" ) sued the City of Philadelphia (" the City" ), Police Officer Michael Gentile (" Gentile" ), Police Officer Robert Tavarez (" Tavarez" ) (collectively " the officers" ), Detective Joseph Newbert (" Newbert" ) (collectively " Police Defendants" ) regarding an incident on December 28, 2010.

Across eight counts, the AC alleged four violations of Plaintiff's Fourth and Fourteenth Amendment rights by the Police Defendants, in their individual and official capacities, pursuant to 42 U.S.C. § 1983, including allegations of false arrest, false imprisonment, and malicious prosecution (Count II), failure to intervene (Count III), conspiracy (Count V), and denial of equal protection of the laws (Count VI); a § 1983 claim of excessive force, and a state claim for assault and battery, against Gentile (Counts I and VIII); state law claims for false arrest, false imprisonment, and malicious prosecution against Police Defendants (Count IV); and a claim against the City of Philadelphia for failure to train and supervise (Count VII).

Defendants have moved for partial summary judgment against Count II, Count III, Count IV, Count V, Count VI and Count VII. (Dkt No. 23, Defs' Mot. for Partial Summary Judgment [hereinafter MSJ].) After a thorough review of the record, including Defendants' Motion for Partial Summary Judgment, and Plaintiff's Response, (Dkt No. 24, Pl.'s Resp. to Defs' Mot. for Summary Judgment [hereinafter Pl. Resp.]), the Court will GRANT IN PART AND DENY IN PART the Motion. The Court GRANTS summary judgment as to Counts II, Count III only as to Gentile, Count IV, Count V, Count VI, and Count VII, and DENIES summary judgment as to Count III only as to Tavarez and Newbert. Plaintiff's claims under Count I, Count III as to Tavarez and Newbert, and Count VIII remain.

I. Factual Background

The Court recites the undisputed facts as viewed in the light most favorable to Plaintiff. The Court further notes where salient facts remain disputed.

On December 28, 2010, Plaintiff lived at 4545 N. 7th Street in Philadelphia, PA. Early in the morning on December 28, 2010, Plaintiff went to his neighbor, Reiny Rosario (" Rosario" ), and told him that he and his boyfriend were having a disagreement, and if he did not return in five minutes to call the police. (Dkt No. 24, Ex. E, Reiny Rosario Affidavit, December 1, 2014 [hereinafter Rosario Aff.].) Rosario did call the police. (Rosario Aff.)

Tavarez and Gentile responded to a radio call to travel to 4545 N. 7th Street in Philadelphia, PA on December 28, 2010. (Dkt No. 23, Defs' Statement of Undisputed Material Facts [hereinafter Defs SOF] ¶ 1; Dkt No. 24, Pl.'s Statement of Material Facts [hereinafter Pl. SOF]; Dkt No. 23, Ex. A, Philadelphia Police Department Arrest Memo [hereinafter Arrest Mem.]; Dkt No. 24, Ex. B, Deposition of Michael J. Gentile, November 26, 2013 [hereinafter Gentile Dep.] 5:6-12.) The radio call transcripts reveal that at 1:44:06AM, Radio stated to Police, " Alright units responding to 4545 N. 7th, person with a weapon, if not on location, slow it down." (Dkt No. 24, Ex. F., Radio Call Logs [Radio Logs] at 1.44.06 AM.)

When Tavarez and Gentile arrived at the residence, they observed a shattered fish tank. (Defs SOF ¶ ¶ 2-3; Pl. SOF ¶ 3; Gentile Dep. 10:12-18.) There is a dispute of fact regarding what else the officers observed upon arriving on the scene. The Arrest Memo states that " we also observed broken furniture all over the living

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room and bedroom." (Arrest Mem.) In his deposition, Gentile reported that " the whole house was in disarray." (Gentile 4-5.) This account is disputed by Plaintiff. (Pl. SOF ¶ 3.) However, in Plaintiff's deposition, he confirmed that his boyfriend had broken his laptop, thrown a cup, and was " knocking things over." (Berrios Dep. 14:5-14:24.) Thus, the Court finds it undisputed that Tavarez and Gentile arrived at the apartment and viewed broken things strewn across the living room.

The first person that the officers encountered was Jason Mendez (" Mendez" ). (Defs SOF ¶ 4; Pl. SOF ¶ 4; Arrest Mem.; Gentile Dep. 7:23.) Mendez told the officers that Plaintiff had hit him in the face with an iron. (Gentile Dep. 9:24-9:1.) There is a dispute of fact between the parties as to whether or not Mendez had visible injuries. At his deposition, Gentile stated that " Right away I noticed he had some bruising, redness and a little blood on his face." (Gentile Dep. 8:22-24; see also Gentile Dep. 10:14-18.) However, the veracity of this statement remains disputed.

The officers then encountered Plaintiff. (Defs SOF ¶ 6; Pl. SOF ¶ 6; Arrest Mem.; Berrios Dep. 22:9-24.) Plaintiff told the officers that he hit Mendez in the face with an iron. (Defs SOF ¶ 7; Pl. SOF ¶ 7; Arrest Mem.; Dkt No. 23, Ex. B, Deposition of Luis A. Berrios, III, November 26, 2013 [hereinafter Berrios Dep.] 23:10-17.) The parties dispute what else was said between Plaintiff and Tavarez at this time, particularly whether Plaintiff explained that he acted in self-defense and whether Tavarez agreed that it appeared Plaintiff had acted in self-defense. Further, the parties dispute at what time in the chain of events the officers learned that Plaintiff and Mendez were boyfriends.

The officers separated Plaintiff and Mendez. (Defs SOF ¶ 8; Pl. SOF ¶ 8.) The officers told Plaintiff to stay in the kitchen. (Defs SOF ¶ 9; Pl. SOF ¶ 9.) There is a dispute of fact as to what was happening between Mendez and the officers at this time. Though, all parties agree that at some point, Mendez began screaming. (Defs SOF ¶ 12; Pl. SOF ¶ 12; Berrios 24:1-5; 27:7-10; 37:15-23; Gentile 14:8-10; 15:20-22.) Tavarez told Plaintiff to stay in the house, but Plaintiff left the house to observe what the officers were doing to Mendez. (Berrios 35:12-21.)

Outside of the house, Plaintiff interacted with Gentile, who told Plaintiff to put his hands down. (Defs SOF ¶ 11; Pl. SOF ¶ 11; Berrios Dep. 34:4-18; 35:23-36:3; 36:16-20; 38:16-19.) Throughout this whole incident, the only person who physically touched Plaintiff was Gentile. (Berrios Trans. 42:10-15.) The parties greatly dispute what happened next. The parties dispute what actions the officers took with Mendez. The parties dispute what type of force, if any, was used by the officers against Mendez and Plaintiff. Radio logs at 1:53:45 AM show a caller reporting to 911 that " Yeah, could I have a captain out to 4545 N. 7th Street...Yeah, the cops are ah beating these two guys up. They're, they're using too much force, like, they're hitting them with sticks." (Radio Logs at 1.53.45 AM.) A further call came in at 1:59:33 AM, where the caller reported that " I had two friends that had a little argument and they needed the cops out and just because they had an argument, the cops are over here beating them up for no reason. So I would like the captain to come out." (Radio Logs at 1.59.33 AM.)

Finally, the parties dispute whether any homophobic epithets and slurs were used. The Court notes that Plaintiff's claims that the Police used homophobic slurs are further corroborated by Rosario's Affidavit. (Rosario Aff.)

At some point, Plaintiff was handcuffed by Gentile. (Defs SOF ¶ 13; Pl. SOF 15; Berrios 39:7-40:1.)

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The parties dispute whether Gentile placed the handcuffs on tightly, or acted to twist the handcuffs. While handcuffed, Plaintiff called for help. (Defs SOF ¶ 15; Pl. SOF ¶ 15; Berrios Dep. 40:7-15; 41:12-13.) While sitting in the police vehicle, Plaintiff banged his own head on the windshield on one occasion. (Defs SOF ¶ 14; Pl. SOF ¶ 14; Arrest Mem.; Berrios Dep. 40:16-18; 41:14-16; Gentile Dep. 13:5-8.) The parties dispute what the officers said to Plaintiff, and said to each other, in the police car.

Plaintiff was arrested. (Defs SOF ¶ 13; Pl. SOF ¶ 13.) Plaintiff was charged with possessing an instrument of crime with intent, simple assault, and recklessly endangering another person. (Defs SOF ¶ 16.) These charges were all withdrawn. (Defs SOF ¶ 16.)

As a result of this incident, a Philadelphia Police Department Domestic Violence Report, (Dkt No. 23, Ex. D [hereinafter DV Report]), Philadelphia Police Department Incident Report -- 75-48, (Dkt No. 23, Ex. E [hereinafter Incident Rep.]), and a Philadelphia Police Department Investigation Report were filed. (Dkt No. 23, Ex. F [hereinafter Invest. Rep.]; Defs SOF ¶ 17; Pl. SOF ¶ 17.) Newbert, Tavarez, and Gentile are all listed as " arresting officers." (Incident Rep. at 2.)

II. Standard of Review

Under Fed.R.Civ.P. 56(a), a court shall grant summary judgment " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the moving party is entitled to a summary judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a). In order to defeat a motion for summary judgment, disputes must be both (1) material, meaning they concern facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated " against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322--23. A dispute is genuine if the fact finder could reasonably return a verdict in favor of the non-moving party with respect to that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. In reviewing a motion for summary judgment, the court " does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer v. Carrier Express, 54 F.3d 1125, 1127 (3d Cir. 1995).

III. Discussion

a. Plaintiff's claims for false arrest and false imprisonment must be dismissed because police officers had probable cause to arrest Plaintiff.

Under Count II of his Amended Complaint, Plaintiff alleges that Defendants Gentile, Tavarez, and Newbert violated his Fourth and Fourteenth Amendment rights to be free from false arrest, false imprisonment, and malicious prosecution. (AC ¶ ¶ 39-43.)

Section 1983 provides that a plaintiff may bring a lawsuit against a state actor for a violation of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 n. 3 (3d Cir. 2000). " The Fourth Amendment

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prohibits a police officer from arresting a citizen except upon probable cause." Rogers v. Powell, 120 F.3d 446, 452 (3d Cir. 1997). Probable cause is a defense against false arrest and imprisonment claims under section 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). " Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." U.S. v. Cruz, 910 F.2d 1072 (3d Cir. 1990) (citing Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)); see also Wilson v. Russo, 212 F.3d 781, 789 (quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995)). " A police officer may be liable for civil damages for an arrest if 'no reasonable competent officer' would conclude that probable cause exists." Id. at 788-89 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

Plaintiff argues that there could not have been probable cause because the Police Defendants knew that Plaintiff was acting in self-defense. (Pl. Resp. at 5-6.) Plaintiff argues that he had informed Police Defendants that Mendez had " been choking him and hurting him," and that it " was only when he could not breathe" that Plaintiff hit Mendez. (Pl. Resp. at 5-6 (citing Berrios Dep. 23:10-17.)) Plaintiff further argues that Tavarez told Plaintiff that he understood that Plaintiff acted in self-defense. (Pl. Resp. at 6 (quoting Berrios Dep. 23:110-22.))

The Third Circuit has held that affirmative defenses may be relevant considerations in the assessment of probable cause. Holman v. City of York, PA, 564 F.3d 225, 231 (3d Cir. 2009). However, the Third Circuit has not definitively addressed whether the affirmative defense of self-defense may negate probable cause. Gorman v. Bail, 947 F.Supp.2d 509, 521 (E.D. Pa. 2013) (collecting and summarizing cases). The Third Circuit has addressed the interplay of other affirmative defenses and probable cause in three precedential opinions. Holman, 564 F.3d 225 (3d Cir. 2009); Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007); Radich v. Goode, 886 F.2d 1391 (3d Cir. 1989). In Holman, the Third Circuit held that the " necessity" affirmative defense " need not have been considered in the assessment of probable cause for arrest for trespass at the scene." 564 F.3d at 231. The Circuit held that a ruling to the contrary would require the arresting officer to " examine countless factual permutations to determine the 'necessity' of specific conduct at a given moment in time." Id. at 231.

In Sands, the Circuit held that an officer need not consider whether the charges are barred by a statute of limitations when determining whether there is probable cause. 502 F.3d at 269. The Circuit explained that this ruling was based on the officer's " limited training in law," and the fact that an on-the-scene analysis of the " ramifications of the ...


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