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Handy v. Palmiero

United States District Court, E.D. Pennsylvania

August 22, 2019



          Juan R. Sánchez, C.J.

         On May 23, 2015, Plaintiff Rodney Handy, Jr. was shot outside the Pasa La Hookah nightclub in Philadelphia, Pennsylvania. Handy alleges that, rather than search for the real shooter, Defendants, Detective John Palmiero[1] and Sergeant Ubirajara Baldomero of the Philadelphia Police Department (the Department), targeted him as a suspect in retaliation for a prior lawsuit he filed against the Department.[2] The campaign against Handy allegedly reached its zenith when Defendants searched Handy's home, purportedly in violation of his Fourth Amendment rights, and smeared him in the Philadelphia Daily News, purportedly in violation of state law. Before the Court are Defendants' motion for summary judgment (Document 23) and Handy's motions to strike Defendants' Answer to his Amended Complaint (Document 24) and Defendants' opposition to Handy's motions to strike (Document 25). The Court will grant summary judgment in Defendants' favor because they are entitled to qualified immunity, and the Court lacks supplemental jurisdiction to consider Handy's state claims. Moreover, in light of the Court's decision on the merits, the Court will dismiss Handy's motions to strike as moot.


         The events at issue took place in late May, 2015. At around 6:25 a.m. on the morning of May 23, 2015, Plaintiff Rodney Handy, Jr. was discovered by police hiding in his white Toyota Avalon near the Pasa La Hookah nightclub in Philadelphia, Pennsylvania, see Mot. for Summ. J. Ex. I at 44:2, 119:13-15, with blood on his face and streaked down the side of the vehicle, id. Ex. C at 1. Handy told officers that he had been shot in his left foot but claimed not to have seen who shot him and refused to provide any additional information. Id.; see also Id. Ex. A at 1 (describing Handy as “uncooperative”); id. Ex. B at 1 (same). Handy was then transported to the Frankford Torresdale Hospital for treatment. Id. Ex. C at 1. About an hour and a half later, Palmiero, a detective for the Department, logged six .40 caliber fired cartridge casings from the scene of Handy's shooting as evidence. Id. Ex. E at 1.

         At approximately 8:30 a.m. on the morning of May 23, Palmiero interviewed Handy at the hospital. During the interview, Handy claimed that he “did not remember” where he was when he was shot and disclaimed any knowledge of the identity of his assailant. Id. Ex. G at 1. Handy also told Palmiero that he legally owned a .40 caliber firearm, which he kept locked in his house Id. at 2. When Palmiero asked Handy whether he had any weapons inside the white Avalon, Handy stated, “not that I know of.” Id.

         At 1:51 p.m., Magisterial District Judge Kevin Devlin signed a search warrant prepared by Palmiero for Handy's Toyota Avalon, which identified the evidence to be searched and seized as “proof of ownership, firearms, ballistic evidence, and any other item that may be of evidence value or assist with the investigation.” Id. Ex. J at 1. The warrant was accompanied by a typed affidavit of probable cause. Id. Ex. F at 1. In pertinent part, the affidavit claimed that probable cause existed to search Handy's car

[Due] to the fact that the complainant was uncooperative with Police during this investigation, his injuries are consistent with being involved in a physical fight, the gunshot wound he sustained is consistent with a self[-]inflicted wound along with the fact that the caliber of the gun the complainant owns matches the same caliber of [fired cartridge casings] recovered from the scene.

Id. Handwritten on the affidavit is a notation: “Approved ADA Harrell 5/23/15 12:24 p.m.” Id. The warrant was served at 2:30 p.m., and two cell phones and a photo identification were recovered. Id. Ex. J at 1.

         The following day, on May 24, 2015, Palmiero sought a warrant to search Handy's home. See Id. Ex. K. The warrant indicates that it was approved by ADA Harrell at 10:32 a.m. that morning, and signed by a Magistrate Judge Bedford at approximately 11:00 a.m. Id. With respect to probable cause, the warrant directs the issuing authority to “see continuation for facts and circumstances.”[4] A search was executed pursuant to the warrant by a team of officers, [5] which included both Palmiero and Sergeant Baldomero, not long thereafter, and several items were recovered. Id. (noting the recovery of a “40 cal walter handgun, ” “2 loaded magazines, ” “1 box ammunition, ” “2 bullet proof vests, ” and a “gun purchase receipt”).

         On May 26, 2015, the Philadelphia Daily News published an article recounting the events described above.[6] The article also indicated that “[p]olice . . . retrieved two plastic jars containing a ‘green weedy substance' that were left behind in the emergency room.” Id. Ex. L at 1. According to the article, “[t]he jars were left inside the room where Handy was treated.” Id.

         Ultimately, Handy was cleared of any wrongdoing. On May 22, 2017, he filed this action in the Philadelphia Court of Common Pleas. Defendants filed a notice of removal in this Court on July 12, 2017. Defendants filed a motion to dismiss the Complaint, which the Court granted on October 17, 2017. See Order, Oct. 17, 2017, ECF No. 11. On November 16, 2017, Handy filed the Amended Complaint, which Defendants, again, moved to dismiss. The Court granted that motion in part, allowing only Handy's Fourth Amendment, defamation, slander, and libel claims to proceed. See Order, Sept. 28, 2018, ECF No. 18.

         On July 2, 2019, Defendants contemporaneously answered Handy's Amended Complaint and moved for summary judgment. See Answer, July 2, 2019, ECF No. 22; Mot. for Summ. J., July 2, 2019, ECF No. 23. On July 16, 2019, Handy moved to strike Defendants' Answer, given that it was filed well-beyond the timeline established by Rule 12(a)(4)(A) and no leave had been sought pursuant to Rule 6(b). See Mot. to Strike Answer, July 16, 2019, ECF No. 24. On August 9, 2019, Handy filed a second motion to strike, this time pertaining to Defendants' opposition to his motion to strike their Answer. See Mot. to Strike Opp'n to Mot. to Strike Answer, Aug. 9, 2019, ECF No. 37. All three motions are now before the Court for disposition.


         As noted above, only a handful of Handy's claims have advanced beyond the pleading stage: his Fourth Amendment claim pursuant to 42 U.S.C. § 1983 and his state common law claims for defamation, slander, and libel. The Court will grant summary judgment in Defendants' favor because they are entitled to qualified immunity, and, the Court will decline to exercise supplemental jurisdiction over the defamation, slander, and libel claims and dismiss them for lack of subject matter jurisdiction.

         A motion for summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine” dispute is one where “the evidence is such that a reasonable jury could return a verdict for the [non-moving] party.” Id. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation and internal quotation marks omitted). To defeat summary judgment, “the non-moving party must present more ...

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