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Considine v. Jagodinski

United States District Court, E.D. Pennsylvania

April 9, 2015

J. MICHAEL CONSIDINE, JR., Plaintiff,
v.
JONATHAN J. JAGODINSKI, Defendant.

MEMORANDUM OPINION

EDWARD G. SMITH, District Judge.

The plaintiff brings this action seeking compensatory and declaratory relief against the defendant, a Radnor Township police officer, for wrongfully citing him for defiant trespass on the premises of the Valley Forge Military Academy. The plaintiff asserts claims under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights and a state-law claim for malicious prosecution. The parties have filed cross-motions for summary judgment, with the defendant moving for summary judgment on the grounds that he is entitled to qualified immunity, he had probable cause to issue the citation, and the plaintiff has not established a First Amendment violation. The court agrees and, accordingly, will grant the defendant's motion for summary judgment and deny the plaintiff's motion for summary judgment.

I. ALLEGATIONS AND PROCEDURAL HISTORY

On December 12, 2013, the plaintiff, J. Michael Considine, Jr., commenced this action by filing a complaint against the defendant, Officer Jonathan J. Jagodinski of the Radnor Township Police Department.[1] Doc. No. 1. Prior to service of the complaint, the plaintiff filed an amended complaint on February 2, 2014.[2] Doc. No. 4.

In the amended complaint, the plaintiff alleges that in December 2011, he visited the Valley Forge Military Academy ("VFMA") in Radnor, Pennsylvania to interview witnesses on behalf of clients he was representing as an attorney.[3] Am. Compl. at ¶¶ 5-6, 8. The plaintiff alleges that, at the time he visited VFMA, the school did not have notices posted at the entrances advising visitors that they were required to obtain authorization to visit the premises. Id. at ¶ 19. Additionally, no one ever told the plaintiff to leave the premises and he never refused to leave. Id. at ¶ 20.

The plaintiff entered the premises by a road leading to a parking lot, and neither the entrance to the road nor parking lot had "no trespassing" signs, or signs indicating that permission or registration was required to enter the campus. Id. at ¶ 25. Once on the campus, the plaintiff saw a cadet, and asked him if he knew Marcos Settinieri.[4] Id. at ¶ 8. Coincidentally, this cadet was Mr. Settinieri. Id. Mr. Settinieri agreed to speak with the plaintiff and invited him inside Martin Hall. Id. The plaintiff spoke with Mr. Settinieri and another witness named Josh Bernstein, received information from them, and left his business card with Mr. Settinieri.[5] Id. at ¶¶ 8-9.

At some point, staff from VFMA received information about the plaintiff's presence at VFMA, spoke to Mr. Settinieri about it, and then called the police. Id. at ¶ 11. The VFMA staff provided the police with the plaintiff's name, address, and phone number. Id. On December 13, 2011, the defendant left a message on the plaintiff's answering machine stating that he was not permitted to return to VFMA and that he would receive a citation. Id. at ¶ 12. Weeks later, the plaintiff received a citation for defiant trespass under 18 Pa. C.S. § 3503(b)(1). Id. at ¶ 18.

The plaintiff alleges that the defendant "issued the citation in retaliation for and in a deliberate attempt to punish [him] for and intimidate him into not conducting any further investigation into a matter involving VFMA and to keep him from obtaining information from willing witnesses in the Deshais and future matters, " (sic). Id. at ¶ 33. At a magistrate's hearing on April 18, 2012, a magisterial district court judge found the plaintiff guilty of defiant trespass. Id. at ¶ 21. The plaintiff appealed this decision and the Delaware County Court of Common Pleas found him not guilty.[6] Id. at ¶¶ 22-23.

Based on the aforementioned allegations, the plaintiff asserts causes of action against the defendant for (1) violation of his First Amendment rights under 42 U.S.C. § 1983, (2) declaratory judgment under 28 U.S.C. § 2201 for the violation of his First Amendment rights, and (3) malicious prosecution.[7] Id. at ¶¶ 35-45. Apparently, the defendant did not respond to the amended complaint and, after the Honorable Paul S. Diamond's deputy clerk sent a letter to the plaintiff noting the failure to respond, the plaintiff moved for the entry of default on March 26, 2014. Doc. Nos. 7, 8. The defendant filed a response to the motion for entry of default and a motion seeking to vacate and set aside the entry of default on April 1, 2014. Doc. No. 10. Judge Diamond entered an order denying the motion for entry of default on April 2, 2014. Doc. No. 11. The defendant then filed an answer to the amended complaint on April 4, 2014. Doc. No. 12.

The Honorable Petrese B. Tucker reassigned this case from Judge Diamond to the undersigned on April 22, 2014. Doc. No. 17. The court had an initial pretrial conference with counsel on May 28, 2014, and issued a subsequent scheduling order. Doc. Nos. 24, 25. The defendant filed a motion for summary judgment on January 15, 2015. Doc. No. 55. The plaintiff filed a response in opposition to the motion on February 12, 2015. Doc. Nos. 62, 63.

The plaintiff filed a motion for summary judgment on January 29, 2015. Doc. Nos. 59, 60. The defendant filed a response in opposition to the plaintiff's motion for summary judgment on February 9, 2015. Doc. No. 61. The plaintiff filed a reply brief on February 24, 2015. Doc. No. 65. The defendant filed a surreply on February 27, 2015. Doc. No. 66. The court held oral argument on the cross-motions on March 12, 2015. The cross-motions are now ripe for disposition.

II. DISCUSSION

In the plaintiff's motion for summary judgment, he argues that he is entitled to summary judgment because the defendant did not have probable cause to issue the citation.[8] Pl.'s Mot. for Summ. J. at 24-25, 29. In response to the plaintiff's motion, the defendant argues that (1) he had probable cause to issue the citation as a matter of law, and (2) the First Amendment cases cited by the plaintiff are merely broad statements of the law without any application to the facts of this case, and in any case are inapposite. Mem. of Law in Opp. to Pl.'s Mot. for Summ. J. on Behalf of Def. Officer Jonathan J. Jagodinski ("Def.'s Opp.") at 1-7.

In the defendant's motion for summary judgment, he contends that (1) the plaintiff has not established a claim for malicious prosecution under federal law because he has not suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding; (2) the plaintiff has not established a claim for malicious prosecution under Pennsylvania law because the defendant had probable cause to issue the citation; (3) the plaintiff has not established a First Amendment violation; and (4) even if he violated the plaintiff's First Amendment rights, he is entitled to qualified immunity. Def.'s Mot. for Summ. J. at 22-34. In response to this motion, the plaintiff argues that he (1) was given the citation in retaliation for exercising his right to free speech under the First Amendment; (2) the elements of defiant trespass were not present when the defendant issued the citation; (3) the defendant did not have probable cause to issue the citation; (4) with respect to the federal malicious prosecution claim, an issue of fact exists as to whether there was a seizure; (5) qualified immunity is inappropriate because a reasonable officer would know that arresting the plaintiff would violate clearly established law, because the police cannot arrest a person for defiant trespass without notice.[9] Pl.'s Resp. at 15-24.

A. Standard of Review - Summary Judgment

A district court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Additionally, "[s]ummary judgment is appropriate when 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.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). An issue of fact is "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). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id.

The party moving for summary judgment has the initial burden "of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the moving party has met this burden, the non-moving party must counter with "specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); see Fed.R.Civ.P. 56(c) (stating that "[a] party asserting that a fact... is genuinely disputed must support the assertion by... citing to particular parts of materials in the record...; or... [by] showing that the materials cited do not establish the absence... of a genuine dispute"). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which the non-movant bears the burden of production. Anderson, 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations, or suspicions are insufficient to defeat summary judgment. See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (indicating that a party opposing a motion for summary judgment may not "rely merely upon bare assertions, conclusory allegations or suspicions"); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999) (explaining that "speculation and conclusory allegations" do not satisfy non-moving party's duty to "set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor."). Additionally, the non-moving party ...


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