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Siminick v. City of Hermitage

United States District Court, W.D. Pennsylvania

March 27, 2018

GLENN SIMINICK, Plaintiff,
v.
CITY OF HERMITAGE, et al, Defendants.

          OPINION

          Mark R. Hornak, United States District Judge

         At the center of this case is a series of episodes involving the Plaintiff and his alleged desire to walk his dogs in and around Buhl Park and feed its wildlife. Buhl Park is a private reserve[1]located in the City of Hermitage, which is in Mercer County, Pennsylvania. The Plaintiff brings claims for violations of his rights under the First and Fourteenth Amendments, for an alleged conspiracy to violate those rights, along with a state law claim for assault and battery as to Defendant Roy Hamor.[2]

         All Defendants[3] have moved for summary judgment. ECFNos. 115, 119, 123. The matters have been fully briefed, and oral argument held. For the reasons which follow, the motions for summary judgment as to all of the Plaintiffs claims based on federal law are granted.[4] The motion as to the remaining state law claim for assault and battery against Defendant Hamor is denied without prejudice. As to that remaining claim, the Court's jurisdiction is based only on the exercise of supplemental jurisdiction, 28 U.S.C. § 1367(c)(3). Because that would be the only claim left in this case, and against only one Defendant (Hamor), that claim will be dismissed without prejudice for lack of subject matter jurisdiction, and the Plaintiff is free to pursue that claim in state court should he seek to do so, and to the extent permitted by state law.

         The central events in this case unfolded from May, 2013 to October, 2014. On May 1, 2013, it appears that the Plaintiff got into a wrestling match with Defendant Hamor[5] when Hamor allegedly saw that Plaintiff was feeding wildlife in the Park contrary to Park directives to the Plaintiff that he not do so. Plaintiff and Hamor each say that that grappling was the fault of the other. Based on what he saw when he was called to the scene, and what a third-party witness told him, the responding Hermitage Police Officer, Defendant Erickson, cited[6] both of those actors for harassment and disorderly conduct under state law. ECF No. 125-1 at 5. It appears that Plaintiff was convicted at the local magistrate of harassment in November, 2013, but the charges were later withdrawn when an appeal was taken to the Court of Common Pleas of Mercer County, Pennsylvania. ECF No. 125-1 at 14.

         On May 15, 2013, the Park sent the Plaintiff a certified letter advising him that he was barred from the Park due to his feeding of wildlife in the Park. That letter was returned from the postal service unclaimed, but the Park's Ranger, William Watson, asserts that he personally told the Plaintiff of his being barred on June 15, 2013[7]. The Police Department had been provided with a copy of the May 15, 2013 letter on or about May 16, 2013.

         On June 16, 2013, the Plaintiff was in the Park. As instructed by his Park superiors, Watson called the Hermitage Police via the County 9-1-1 Dispatch Center, [8] Officer Erickson was dispatched by County 9-1 -1, arrived, and cited the Plaintiff for trespass, but only after interviewing Watson and being told by Watson that he (Watson) had personally told the Plaintiff to stay out of the Park, and that the Plaintiff was then actually in the Park. At a local magistrate's hearing months later (in November, 2013), the Plaintiff was acquitted of that charge.

         On September 25, 2013, the Plaintiff was again seen in the Park by Park officials. As they had been instructed to do by their Park superiors, they called the police. Defendant Officer DiLorenzo was dispatched to the scene, and cited the Plaintiff for trespassing. In November, 2013, the Plaintiff was acquitted of those charges at the local magistrate.[9]

         On September 17, 2014, the Plaintiff was cited for summary trespassing in the Park, and then again on October 6, 2014, each time by Defendant Rogerson. Those charges were withdrawn, but reinstituted as misdemeanor defiant trespass charges. In January, 2016, Plaintiff was convicted of the September, 2014 trespass charge, which conviction was then affirmed by the Pennsylvania Superior Court on appeal. ECF No. 116 at ¶ 37.

         It is against this backdrop that this lawsuit unfo'ds. We'll consider the claims and the summary judgment motions as to the Defendants seriatim.

         Defendants Fait and O'Mahony were at all relevant times management officials of the Park, and the Park only. ECF No. 116 at ¶¶ 18-19. They hold no governmental or political office in Hermitage, or seemingly anywhere else. The Plaintiff claims that they deprived him of Equal Protection of the law under the Fourteenth Amendment (Count II), retaliated against him for the exercise of his rights under the First Amendment (Count III) and also conspired with Hermitage officials to deprive him of those same federal rights (Count IV). The federal claims against these Defendants at Counts II and III facially fail because the record demonstrates that these Defendants simply are not state officials, which is ordinarily a fundamental predicate for asserting First and Fourteenth Amendment claims via 42 U.S.C. § 1983. See Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200 (3d Cir. 2009); Hessami v. Corp. o/Ranson, 170 F.Supp.2d 626 (N.D. W.Va. 2001). (First Amendment does not apply to private actors). The Plaintiff advances no record basis to conclude that the Park itself is a state entity, or should be treated as one in these circumstances, so their status with the Park does not clothe these Defendants with the mantle of "state actor" status[10].

         The basis upon which the Plaintiff does seek to snag them with a "federal hook" comes at Count IV (and in parallel allegations at Counts II and III) that these Defendants supposedly conspired with Hermitage officials to work with those local governmental officials in depriving the Plaintiff of those federal rights. Goodson v. Maggi, 797 F.Supp.2d 624, 638 (W.D. Pa. 2011). But what the record shows is that what that these Park Defendants did was call the police when the Plaintiff was in the Park contrary to the orders of the Park officials. ECF No. 116 at ¶ 30.

         Calling the police, rather than engaging in self-help, to report a violation of the law simply is not "state action", nor does it make the person calling the police a "state actor." Dickerson v. DeSimone, Inc., 2011 WL 3273228 at *2-3 (E.D. Pa. Aug. 1, 2011). As to the claimed conspiracy, the only thing that the record shows is that when Park officials met with Hermitage officials (at the Park offices, and at the request of Fait) in early September, 2014 to discuss with them how the Park should address the Plaintiffs repeated re-entry to the Park against the Park's wishes, the local government officials in attendance (the Hermitage City Manager and its Chief of Police, neither of whom is a Defendant here) advised the Park officials that the Park officials should not engage in self-help, but should call the Police for assistance. ECF Nos. 130 at ¶ 108, 133 at 8-10. Thus, the core of the Plaintiffs "conspiracy" allegation is that the Park officials called the local Police when they concluded that the Plaintiff was trespassing in the Park, that the local officials had advised the Park officials that the Park officials should call the police if they believed that the Plaintiff was so trespassing, and then when dispatched by the County 9-1-1 dispatch center, [11] the Police arrived, investigated, [12] and cited the Plaintiff. ECF No. 131 at 8.

         That rather unremarkable effort to engage law enforcement by citizens who believe that the law needed to be enforced is not evidence of the requisite conspirational "meeting of minds, " Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008), aimed at the goal of depriving the Plaintiff of Constitutional rights, such as could cause these Park Defendants to be treated as "state actors." The Plaintiffs argument in support of his conspiracy claim is premised on his contention that by virtue of the Park officials meeting with the Hermitage Police officials in order to discuss the Plaintiffs being barred from the Park, by the Park anc the Police officials advising them that if they believed that occurred that they should call the police, there is sufficient record evidence of a "meeting of the minds" that they would work hand-in-hand for the purpose of depriving the Plaintiff of constitutional rights. But to make that leap would require rank speculation (especially as to any evidentiary link between the asserted conspiracy and the Police Officer Defendants) that is unsupported by record evidence of any such agreement[13]. Kamanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1400 (D. Del. 1984), aff'd, 769 F.2d 152 (3d Cir. 1985). Summary judgment is therefore granted in favor of Defendants Fait eind O'Mahony, and against the Plaintiff, on all claims[14].

         That leaves the federal claims against the City of Hermitage, the Hermitage Police Officer Defendants, and the claims against Kuster and Hamor. For somewhat different reasons, they also all fail, with the exception of the state law assault and battery claim against Hamor (Count VI), a participant in the May, 2013 physical dust-up with the Plaintiff.

         These federal claims fail as to the local Police Officers because they had probable cause[15]to conclude that the Plaintiff was committing a trespass when he was in the Park contrary to what they reasonably understood to be directions he had been given by the Park to stay out of the Park. If there was probable cause for those citations to issue, then the Plaintiffs First and Fourteenth Amendment retaliation and conspiracy claims fail as a matter of law as against all of them, and Plaintiff concedes as much. ECF No. 133 at 3. Hartman v. Moore, 547 U.S. 250, 263 (2006); see Posey v. Swissvale Borough, 2013 WL 989953, at *8 (W.D. Pa. March 13, 2013).

         As to the September, 2014 trespass charge, the record is undisputed that the Plaintiff was convicted of that offense, and that conviction was affirmed on appeal to the Pennsylvania Superior Court. ECF No. 116 at 37. That means that the Plaintiff was guilty of the charge at issue beyond a reasonable doubt, which is way above and beyond the lower ...


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