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Kane v. Barger

United States District Court, W.D. Pennsylvania

August 17, 2017

BRANDY KANE, Plaintiff,
v.
SHAWN BARGER, in his individual capacity, Defendant.

          OPINION

          MARK R. HORNAK, UNITED STATES DISTRICT JUDGE.

         Plaintiff Brandy Kane alleges that Defendant Officer Shawn Barger of the Coraopolis Police Department violated her right to bodily integrity under the Fourteenth Amendment to the United States Constitution during his investigation into whether Kane was the victim of a sexual assault. Barger filed a Motion for Summary Judgment, ECF No. 48, arguing that his conduct, even when viewed in a light most favorable to Kane, did not rise to the level of an invasion of bodily integrity. Barger also asserts the affirmative defense of qualified immunity.

         For the reasons that follow, Barger's Motion for Summary Judgment will be granted on the basis of qualified immunity.

         I. BACKGROUND

         In the late evening or early morning hours of June 26 and 27, 2013, multiple Coraopolis police officers were dispatched to a location on Fourth Avenue in Coraopolis, Pennsylvania in response to a reported domestic disturbance at Brandy Kane's boyfriend's residence, where Kane lived. ECF No. 50-1 at 4, 21, 24; ECF No. 50-2 at 5; ECF No. 61 at 128-29. There they found Kane walking in the street. ECF No. 50-2 at 5. She was emanating a potent odor of alcohol stemming from her consumption of several drinks of hard liquor. ECF No. 50-2 at 5; ECF No. 61 at 158. Kane was wearing bikini bottoms and an oversize white t-shirt; the t-shirt did not belong to her. ECF No. 50-1 at 10; ECF No. 61 at 160. At the time, Kane was 20 years old. ECF No. 50- 1 at 3; ECF No. 51 at 1 ¶ 2; ECF No. 55 at 2 ¶ 2.

         Kane was arrested, taken to the Allegheny County Jail, and charged with disorderly conduct, underage drinking, resisting arrest, and escape. ECF No. 51 at 2 ¶ 11; ECF No. 55 at 2; ECF No. 50-1 at 10; ECF No. 61 at 160-62. Due to her alcohol consumption (possibly in combination with her prescribed anti-depressant medication), Kane was "blacked out"; she does not recall the events that transpired between when she began drinking at her boyfriend's residence and when she came to in a squad car on the way to the Allegheny County Jail. ECF No. 50-1 at 21-23, 30-31; ECF No. 61 at 158. Sometime after her arrest, Kane realized that she had a lump on the back of her head, bruising on her forearms, bruising or scrapes on both of her legs behind her knees and on her calves, bruising on the back of her left shoulder, and possibly light bruising on her chest. ECF No. 51 at 2 ¶ 13; ECF No. 55 at 2; ECF No. 50-1 at 10, 15; ECF No. 61 at 159-60.

         At Noon on June 27, 2013, Kane was released from Allegheny County Jail. ECF No. 51 at 2 ¶ 15; ECF No, 55 at 2; ECF No. 50-1 at 11; ECF No. 61 at 168-69. A hearing was scheduled for her pending criminal charges. ECF No. 61 at 213. That hearing was initially set for July 2, 2013, but it was continued multiple times. ECF No. 61 at 213-14. Kane was ultimately adjudicated guilty of disorderly conduct and underage drinking but not guilty of resisting arrest and escape. ECF No. 61 at 214.

         When she was released from the Allegheny County Jail, Kane was concerned that she might have been sexually assaulted because she was not wearing pants when she was arrested, she had a large amount of vaginal discharge with an unusual odor, her vagina was irritated, and she could not recall what happened. ECF No. 50-1 at 14; ECF No. 50-4 at 12; ECF No. 61 at 162, 174-75. Kane spoke with her criminal defense attorney, who suggested that she go to the hospital to receive a psychiatric evaluation. ECF No. 61 at 169. After showering at her mother's house and having a friend take photographs of her bruising, Kane went to Sewickley Valley Hospital at around six or seven o'clock on the evening of June 27, 2013. ECF No. 51 at 3 ¶ 15-16; ECF No. 55 at 2; ECF No. 50-1 at 13, 20; ECF No. 61 at 169, 197-98. At the hospital, Kane requested both a psychiatric evaluation and a sexual assault examination. ECF No. 51 at 3 ¶ 17; ECF No. 55 at 2; ECF No. 50-1 at 13-14. As part of the sexual assault examination, a hospital doctor or nurse photographed Kane's arms, her shoulder, the back of her knees, and her legs. ECF No. 50-1 at 14, 42-43; ECF No. 61 at 175-76, 292.

         Although it was both official protocol and common practice for the Coraopolis Police to refer sexual assault investigations to the Allegheny County Police (ECF No. 55 at 9 ¶ 36(vi); ECF No. 63 at 3 ¶ 36(vi); ECF No. 50-6 at 4; ECF No. 61 at 19, 95), Officer Shawn Barger, a Coraopolis police officer, was dispatched to and arrived at the hospital purportedly to investigate Kane's possible sexual assault. ECF No. 51 at 3 ¶ 18; ECF No. 55 at 2 ¶ 18; ECF No. 50-1 at 15. Barger was forty years old. ECF No. 55 at 7 ¶ 36(i); ECF No. 63 at 1 ¶ 36(i).

         The parties dispute whether Officer Barger was assigned to investigate Kane's possible sexual assault. ECF No. 51 at 3 ¶ 18; ECF No. 55 at 2 ¶ 18. Barger's report indicates he was contacted by Sewickley Valley Hospital. ECF No. 61 at 435. Barger now says he was initially assigned to the case by a police dispatcher because he was the officer in charge that night. ECF No. 50-6 at 4; ECF No. 61 at 18-19; ECF No. 61 at 21. According to then-Police Chief Alan DeRusso, this would have been standard procedure. ECF No. 61 at 89. Barger claims that he asked a dispatcher to inform the Allegheny County Police about the incident so that they could provide support. ECF No. 50-6 at 4; ECF No. 61 at 18-19. Barger also says, and his incident report reflects, that he spoke with Allegheny County Detective Adams, and Adams told Barger to conduct an initial interview Kane regarding Kane's possible sexual assault to determine if, in fact, an assault took place, and that an Allegheny County investigative team would then be assigned. ECF No. 50-6 at 4-5; ECF No. 50-4 at 12; ECF No. 61 at 22-23. In any event, Barger considered himself the lead investigator on Kane's case. ECF No. 50-6 at 5.

         On the evening of June 27, 2017, Officer Barger collected the hospital's rape kit as evidence. He later transported it to the Coraopolis Police Station, where he placed it in a secure evidence refrigerator. ECF No. 50-6 at 11; ECF No. 50-4 at 12. Barger then interviewed Kane concerning her possible sexual assault. ECF No. 50-1 at 15-16. Kane's mother and a victim advocate were present. ECF No. 50-1 at 16. Kane says that Barger told her to come to the police station the next day and provide him with the clothing she had been wearing during the incident. ECF No. 50-1 at 16. In his incident report, Barger stated that Kane told him she would put the clothes she was wearing during the incident in paper bags and bring them in to the station the next day. ECF No. 50-4 at 13.

         The following day, on June 28, 2013, Kane and one of her friends, Cayla Combs, went to the Coraopolis Police Station. ECF No. 50-1 at 16; ECF No. 50-3 at 20-21; ECF No. 50-4 at 13; ECF No. 61 at 47-48. The parties dispute whether Kane initiated the trip to the police station to retrieve her cell phone or whether she did so because Officer Barger had directed Kane to come to the station to provide him with evidence-the clothing in her possession after her possible sexual assault (bikini bottoms, a pair of shorts, and a T-shirt). ECF No. 51 at 3 ¶ 19; ECF No. 55 at 3 ¶ 19; ECF No. 50-1 at 16, 43; ECF No. 50-6 at 11; ECF No. 50-3 at 20-21. In any event, Kane both retrieved her cell phone from the station and provided the clothing from the night prior to Barger. ECF No. 50-1 at 17; ECF No. 50-6 at 9; ECF No. 50-4 at 13.

         While at the Coraopolis Police Station, Kane and Combs met separately with Officer Barger to discuss Kane's possible sexual assault. ECF No. 50-1 at 16; ECF No. 50-3 at 21; ECF No. 51 at 3 ¶ 20-21; ECF No. 55 at 3 ¶ 20-21; ECF No. 61 at 182-84. Kane and Barger met alone in a back room of the station, which had at least one table or desk. ECF No. 50-1 at 16; ECF No. 50-6 at 13; ECF No. 61 at 99-100. Barger says he was the one who directed Kane to the back room. ECF No. 61 at 48-49. Kane says the door to the hallway was closed; Barger says it was open. ECF No. 50-1 at 16; ECF No. 50-6 at 13; ECF No. 50-7 at 11.

         During Kane's meeting with Officer Barger, Barger asked Kane at least once whether she had any bruising on or around her intimate areas. ECF No. 55 at 10 ¶ 36(viii); ECF No. 63 at 5 ¶ 36(viii). Kane reported a bruise on her upper right buttock. ECF No. 51 at 4 ¶ 27; ECF No. 55 at 5 ¶ 27; ECF No. 50-1 at 17. Kane then told Barger that the hospital had taken photographs of all of her injuries except for the bruise on her right buttock. ECF No. 50-1 at 17; ECF No. 50-7 at 11; ECF No. 61 at 185-86. Barger then asked Kane if he could photograph the bruise on Kane's right buttock.[1] ECF No. 50-1 at 17, 43; ECF No. 50-7 at 11-12; ECF No. 61 at 186, 294. Barger would later explain that he did so solely for evidence documentation purposes. ECF No. 61 at 347.

         Officer Barger claims, and his report reflects, that he tried to power up the Coraopolis Police Department's digital camera, but the Department's camera was not working. ECF No. 50- 6 at 7; ECF No. 50-4 at 13; ECF No. 61 at 29-32; ECF No. 61 at 49-50. According to Barger, that was the only camera in the police station. ECF No. 50-6 at 7. Barger then informed Kane that he had a special application ("app") on his iPhone for taking photographs. ECF No. 50-1 at 17. Kane agreed that Barger could photograph her right buttock. ECF No. 50-1 at 17; ECF No. 50-7 at 12-13. Barger then either photographed or attempted to photograph Kane's right buttock using his personal cell phone, a black iPhone. ECF No. 55 at 10 ¶ 36(xi); ECF No. 63 at 6 ¶ 36(xi); ECF No. 50-1 at 6-7, 16-17; ECF No. 50-6 at 6-7. Kane then asked Barger if he wanted to take photographs of her other injuries besides the bruise on her right buttock, and Barger replied that he did. ECF No. 50-1 at 17; ECF No. 50-7 at 12-13; ECF No. 61 at 186-87.

         Kane says that Officer Barger asked her repeatedly about her breasts, vagina, and buttocks while holding his personal cell phone and photographing her. ECF No. 50-1 at 6-7; ECF No. 50-7 at 14-15; ECF No. 61 at 70, 145. Kane says she believes Barger photographed her more than four times and as many as eight times using his personal cell phone (ECF No. 50-1 at 6-7, 19; ECF No. 61 at 145, 194), but she does not know for sure because she did not see any photographs or hear a camera "click" (ECF No. 50-1 at 7, 18; ECF No. 61 at 69, 146-47), nor does she know exactly what areas of her body Barger photographed. But Kane nonetheless believes that Barger took inappropriate photographs of her "intimate areas, " including her breasts and buttocks. ECF No. 50-1 at 43; ECF No. 61 at 144, 157, 188, 295-96. Barger made no mention of the fact that he either photographed or attempted to photograph Kane with his personal cell phone in his official report. ECF No. 50-4 at 13-14.

         In his deposition, Officer Barger admitted that he attempted to use the evidence collection application on his personal cell phone to take photographs of Kane's injuries. ECF No. 61 at 49, 52, 58-59. Barger denied that he actually photographed Kane, instead describing his attempt as "unsuccessful." ECF No. 61 at 49; ECF No. 50-6 at 12. But Barger also signed a Request for Admission propounded during discovery in this case, agreeing that he "took photographs of Brandy Kane in the Coraopolis Borough Police Station." ECF No. 61 at 5.

         In any event, Officer Barger now says that he at least attempted to photograph Kane's bruises. ECF No. 50-6 at 13. Barger says that he attempted to photograph Kane between five and seven times with his personal cell phone, but the photographs would not "save" to his cell phone because the phone would "freeze" and the evidence collection application would delete them. ECF No. 50-6 at 6-7, 12-15; ECF No. 61 at 58-60; ECF No. 63 at 6 ¶ 36(xii). Barger denies that he himself deleted the photographs; he says that when he attempted to review the photographs, they were simply gone. ECF No. 50-6 at 14; ECF No. 61 at 58-59. Barger nevertheless admits that his actual intent was to take photographs on his personal cell phone to document the evidence of a possible sexual assault, and he would have taken such photographs if the evidence collection application had been working properly. ECF No. 50-6 at 14.

         Kane says after the first round of photographing with Officer Barger's personal cell phone, Barger told her that the photographs were not saving to the phone, so Barger asked if he could retake the photographs. ECF No. 50-1 at 19; ECF No. 61 at 194. Kane then agreed to allow Barger to retake the photographs. ECF No. 50-1 at 19; ECF No. 50-7 at 17; ECF No. 61 at 194. According to Kane, the second round of photographing involved the same areas of her body. ECF No. 50-7 at 17-18; ECF No. 61 at 194. During this second round of photographing, Kane says Barger again asked her if she had injuries to her vagina, to which she again replied she did not. ECF No. 50-1 at 19; ECF No. 61 at 194-95.

         At some point during all of this photographing or attempted photographing, both Kane and Officer Barger together pulled down her grey Adidas basketball shorts far enough to expose the bruise on the upper part of her right buttock. ECF No. 51 at 4 ¶ 27; ECF No. 55 at 5 ¶ 271; ECF No. 50-1 at 17; ECF No. 50-7 at 13; ECF No. 61 at 187. First, Kane turned around facing away from Barger and began to pull down her shorts. ECF No. 50-1 at 17; ECF No. 61 at 187. Then, Barger assisted Kane, pulling down Kane's shorts a little further in order to fully expose the bruise on Kane's right buttock so he could photograph it. ECF No. 50-1 at 17; ECF No. 61 at 187. Kane says that at that point, she "felt something touch her butt crack" which "caused her to jump." But Barger says he was just moving the tag on the back of her shorts out of the way. ECF No. 50-1 at 17; ECF No. 50-7 at 13; ECF No. 61 at 187-88. Barger denies touching Kane. ECF No. 50-6 at 15.[2]

         Kane also says Officer Barger asked her to both stand and sit on a table so he could photograph her inner thigh injuries and bruises on the back of her knees. According to Kane, she did both, pulling up the legs of her shorts while sitting to reveal her inner thighs. ECF No. 50-1 at 17; ECF No. 50-7 at 13-14; ECF No. 61 at 146; ECF No. 61 at 188-89. Barger denies asking Kane to get on the table. ECF No. 50-6 at 13. But Kane says that while she was on the table, Barger twice asked her if she would pull up her shorts further, and she complied, pulling her shorts all the way up to her bikini line, while Barger photographed or attempted to photograph her inner thighs. ECF No. 50-1 at 17-18; ECF No. 50-7 at 13-14; ECF No. 61 at 188-89.

         Kane says that at one point, when Barger asked again about injuries to her vagina, Kane pulled her shorts to the side to show the officer her vagina. ECF No. 50-7 at 15; ECF No. 61 at 190. Kane says Barger looked at her vagina. ECF No. 50-7 at 15; ECF No. 61 at 190. Kane does not allege that Barger asked her to show him her vagina, nor does she believe that Barger photographed her vagina, but she is not certain about that; Kane says that Barger did make her "feel like" he may have photographed her vagina. ECF No. 50-7 at 15; ECF No. 51 at 4 ¶ 30-31; ECF No. 55 at 6 ¶ 30-31; ECF No. 50-7 at 15; ECF No. 61 at 190-91. Barger has denied that Kane exposed her vagina to him. ECF 61 at 402, 408.

         Kane says that when Officer Barger asked about the bruise on her chest, he pulled her tank top down slightly, using his finger to expose the bruise on her upper chest. ECF No. 50-1 at 18; ECF No. 61 at 191. Kane says that she held the tank top in place where Barger had positioned it, and Barger photographed or appeared to photograph the bruise on Kane's chest. ECF No. 50-1 at 18; ECF No. 61 at 191. Barger slid the tank top aside a bit to photograph or attempt to photograph the bruise. ECF No. 50-1 at 19; ECF No. 61 at 193. Kane's breasts were never fully exposed during the session, but the upper portion of her chest around the line of her tank top was exposed, ECF No. 61 at 193, and Kane claims at one point that the upper portion of one of her breasts was exposed, but not her nipple. ECF No. 51 at 4 ¶ 28; ECF No. 55 at 5 ¶ 28; ECF No. 50-1 at 19; ECF No. 61 at 192-93.

         After Officer Barger photographed Kane, Kane says Barger told her that he would be investigating her case further and that he would call the detectives if anything happened. Kane then left the police station. ECF No. 50-1 at 19; ECF No. 50-7 at 17-18. Barger continued investigating Kane's possible sexual assault for at least some time further. ECF No. 50-4 at 17-18. Among others, Barger interviewed Cayla Combs' sister, Porsha Webb; Kane's boyfriend, Dustin Goins; Georgette Blatz, who had found Barger partially clothed; and Paige Bogatay, who saw the bruising on Kane's body. ECF No. 50-4 at 15-18.

         Officer Barger did not document what happened to the bikini bottoms, pair of shorts, and T-shirt that Kane provided as evidence. ECF No. 50-6 at 9. Barger says that he left the clothes in a specific but unspecified location at the police station for the "evidence officer" to collect.[3] ECF No. 50-6 at 9-10. He says he does not know what happened to those evidentiary items after that. ECF No. 50-6 at 9-10; ECF No. 61 at 40-42. The record before the Court contains no chain of custody documentation for those items.

         Detective Kuma from Allegheny County Police Department investigated Officer Barger's conduct at Kane's request. ECF No. 61 at 308-09. Kuma reports that he found Kane to be credible. ECF No. 61 at 388. During Kuma's investigation, Barger initially denied photographing Kane using his personal cell phone, instead telling Kuma he that did not take photographs of Kane at all. ECF No. 50-6 at 13-14; ECF No. 61 at 55. Barger later admitted to Kuma that he had not been completely honest in regards to what happened with Kane at the station. ECF No. 50-6 at 13; ECF No. 61 at 56-57, 61-62, 346-47. According to Kuma, Barger said that he was not honest about what happened regarding the photography session involving him and Kane because he was afraid his girlfriend would find out and become jealous. ECF No. 61 at 349.

         Officer Barger and Detective Kuma disagree about which story Barger eventually settled on. Barger says he later told Kuma that he had attempted to take photographs of Kane on his personal cell phone. ECF No. 61 at 56-58. Kuma believes Barger "lied about whether or not he took the photos." ECF No. 61 at 372. Kuma says Barger later told him that he actually took six or seven photographs of Kane on his personal cell phone with an evidence application after realizing the Department camera wasn't working. ECF No. 61 at 346-47, 366. Kuma says that Barger admitted to actually photographing Kane's upper chest, the side of her buttocks, her inner thighs, and the front and backs of her legs. ECF No. 61 at 347. Kuma says that Barger explained how the evidence application on his iPhone kept freezing up as Barger was taking the photographs. ECF No. 61 at 347. Barger then tried to take photographs with a different iPhone application, and he tried to transfer those photographs into the evidence application. ECF No. 61 at 347. According to Kuma, Barger then told Kuma that he had deleted some of the photographs from his phone, while other photographs never saved to his phone in the first place. ECF No. 61 at 348, 375.

         Detective Kuma later conducted a forensic analysis of almost thirteen thousand (13, 000) photographs from Officer Barger's cell phone, but he found no photographs that have been identified as depicting Kane or any portion of her body, although he says one photograph could possibly be Kane's buttocks. ECF No. 51 at 4 ¶ 25; ECF No. 55 at 4 ¶ 25; ECF No. 50-7 at 27-28; ECF No. 61 at 341-44, 363, 376. Kuma believes that his analysis would have detected any photographs deleted by Barger after the incident, but he is not entirely sure about this. ECF No. 61 at 338-39, 348. Kuma did not look at metadata from Barger's cell phone. ECF No. 61 at 377. Kuma also did not specifically look for indications of a data transfer, nor did he analyze any of Barger's other devices for photographs. ECF No. 61 at 363-65. So while Kuma was confident after his investigation that Barger had not deleted any photographs of Kane, Kuma agreed it is possible that photographs were taken but never saved in the first place, or that such photographs remained on the phone but were encrypted, or that such photographs were transferred to another device prior to his investigation (though he did not see evidence of those things). ECF No. 61 at 345-46, 363-64, 370. ...


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