Johnson v. Crocker et al
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 8/7/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 09-299-LPS
Ronald G. Johnson, Homeless, ProSe Plaintiff.
Andrea Jeane Faraone Rhen, Esquire, City of Wilmington Law Department, Wilmington,
Delaware. Counsel for Defendant.
August 7, 2012
STARK, U.S. District Ju
Plaintiff, Ronald Johnson ("Johnson"), a former inmate at the Howard R. Young
Correctional Institution ("HR YCI") in Wilmington, Delaware, filed this lawsuit pursuant to 42
U.S.C. § 1983. 1 He also raises supplemental State claims of false arrest and malicious
prosecution. Johnson appears prose and has been allowed to proceed in forma pauperis. (D.I. 5)
Pending before the Court are Defendant Wilmington Police Officer Crocker's
("Crocker") Motion for Summary Judgment, Johnson's Requests for Counsel, and Johnson's
Motions for a Mental Evaluation, Reconsideration, to Stay, a Hearing, Copies of Filings, and an
Order for Transcripts from the Court of Common Pleas ofthe State of Delaware. 2 (D.I. 58, 70,
72, 73, 74, 76, 77) The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
For the reasons that follow, the Court will deny the Requests for Counsel, will grant the
Motion for Summary Judgment, and will deny as moot the remaining motions.
Johnson filed his Complaint on April27, 2009 against Crocker and the Wilmington
0ver the course of this litigation, Johnson has spun through a revolving door of
incarceration, release, reincarceration, and release. (See D.I. 1, 6, 9, 15, 19, 212, 24, 28, 33, 36,
37, 40, 41, 42, 46, 63, 70) On July 16,2012, Johnson filed change of address, stating that he has
been homeless for the past thirty days and has no address to receive mail. (D.I. 79) To date, he
has not provided a mailing address.
The transcript Johnson seeks was produced at D.I. 22 and D.I. 58. Some of the motions
provide no argument or law in support of the relief sought. For example, the title of one motion
seeks reconsideration, but there is no mention of reconsideration in the body of the motion. (See
Police Department,3 (D.I. 2) He alleges false arrest by Crocker, that Crocker falsified a police
report to charge him with felony aggravated menacing and possession of a deadly weapon, and
that Crocker refused to arrest an individual who robbed him. (D.I. 2)
On April 8, 2009, at approximately 2:25a.m., Crocker saw several persons running near
the intersection of 4th and Jackson Streets in Wilmington, Delaware. (D.I. 60 Ex. A30
A36-37) When he arrived at the intersection, he was flagged down by Donald Brown ("Donald")
who told him that two male subjects had attempted to rob his godbrother, Mike Brown ("Mike").
(ld. at A30
2; A37) Donald related that just a few minutes earlier, Mike had telephoned him,
yelling, "Yo, I'm being robbed." (!d.) Donald left his residence to help Mike. (!d. at A30-31 at
2; A37) Donald's friend, Angelo Lloyd ("Lloyd"), also hurried to help Mike. (!d. at A31 at
Donald told Crocker that when he and Lloyd arrived at the intersection, they saw a man,
later identified as Johnson, who was holding a machete in his hand. (Id.) Donald and Lloyd saw
a second man, later identified as Michael Clark ("Clark"), who was holding a brick in his hand.
(ld. at A31
2) According to Donald, Johnson proceeded to wave the machete at him, while
Clark gestured as if he was going to throw the brick at him. (!d.) Johnson and Clark ran in
separate directions. (!d.) Donald chased Johnson after he saw Johnson discard the machete at an
I-95 off-ramp area. (Jd.) It was while he was pursuing Johnson that Donald saw Crocker and
tried to flag him down. (Id.)
The Wilmington Police Department was dismissed as a defendant upon screening of the
case. (See D.I. 12, 13)
Lloyd told Crocker that he had seen Johnson holding a long knife that he believed was a
machete. (!d. at A31 at ,-r 3; A38) Lloyd indicated that Johnson had waved the machete at
Donald, that he had seen Clark holding a brick in his hand, and that Clark had made gestures as if
he was going to throw the brick at Donald. (!d. at A31 at ,-r 3; A38) Donald positively identified
Johnson as the individual who had waved a machete at him and provided a description of
Johnson. (!d. at A32, ,-r 5; A37)
During this time, Crocker saw Johnson running and pursued him. (!d. at A31 at ,-r 4; A37)
As he approached Johnson, Crocker ordered him to stop; Johnson surrendered and was
handcuffed; then Johnson was placed in the back of Crocker's police vehicle without incident.
(!d.) Prior to placing Johnson in the police vehicle, Crocker conducted a pat-down search for
weapons and discovered a pocket-knife. (!d. at A31, ,-r 4)
Crocker and other police units unsuccessfully searched the area for the machete. (!d. at
A32, ,-r 6; A37) Following the search, Crocker returned to his police vehicle and Johnson
informed him that the pocketknife was the only knife in his possession and that he had used it for
protection when he confronted Donald. (!d. at A32 at ,-r 7; A37; A53) Johnson told Crocker that
Mike was not a robbery victim. Rather, Mike had attempted to rob Clark by taking his I-Pod. 4
(!d. at A32 at ,-r 8; A50-51; A53-54) Crocker was unable to interview Mike to verify Johnson's
allegations because Mike had left the scene and could not be located. (!d. at A32 at ,-r 8; A38) At
that point, Crocker focused his attention on finding the machete and Clark, who was potentially
According to Johnson, the I-Pod was left at the scene of the confrontation with Mike but,
when Crocker returned to 4th and Jackson Streets to look for the I-Pod, he found only an
electrical cord of the type used to plug into an electrical outlet on a wall rather than for anI-Pod.
(!d. at A32 at ,-r 9; A53-54) Crocker did not see any evidence ofbroken pieces of anI-Pod, an
I-Pod case, or I-Pod earplugs. (!d. at A32-33, ,-r 9; A54)
in possession of a deadly weapon (i.e., the machete and/or the brick). Crocker believed they
posed a greater risk to safety than Mike, who was not alleged to be in possession of a deadly
weapon. 5 (Id at A32 at~ 8)
Johnson informed Crocker that Clark had fled the scene and was probably at his home.
(Id at A33
10; A37-38) Crocker then went to Clark's residence and knocked on the door.
(Id at A33
10; A38) Clark opened the door and was holding a machete. (Id at A33
A38) Crocker confiscated the machete and placed Clark into custody without incident. (Id)
Crocker interviewed Clark who told him that he and Johnson had been involved in an altercation
with Mike over an MP3 player and that Mike had taken the MP3 player from Clark. (Id at A33
10) Crocker later showed Donald the knife taken from Clark, and Donald positively
identified it as the machete held by Johnson at the time of their confrontation. (Id) Donald did
not recant his identification, or change his description of the knife that Johnson waved at him.
Crocker sought, and obtained, arrest warrants for Johnson and Clark for the crimes of
aggravated menacing, in violation of 11 Del. C. § 602(b ), and possession of a deadly weapon
during the commission of a felony, in violation of 11 Del. C. § 1447. (D.I. 3; D.I. 60 Exs.
14) The judge issuing the arrest warrant found probable cause existed based upon
Crocker's affidavit. (D.I. 3)
Johnson's preliminary hearing was held on April 15, 2009, in the Delaware Court of
Common Pleas. (Id at A34,
15; A40-66) Johnson refused representation by counsel at the
Crocker did not arrest Mike following his investigation because he did not believe there
was probable cause to charge him with robbery, attempted robbery, or any other crime. (Id at
A34, ~ 14)
preliminary hearing and chose to proceed prose. (!d. at A34,
Crocker testified under oath on behalf of the State. (!d. at A34,
15; A42) During the hearing,
15; A40-66) The Court of
Common Pleas found probable cause to charge Johnson with the crimes of aggravated menacing
and possession of a deadly weapon during the commission of a felony. (!d. at A64) Johnson was
bound over to answer to those charges in the Delaware Superior Court. (!d. at A34,
On May 1, 2009, the State of Delaware entered a nolle prosequi on the charges against
Johnson for aggravated menacing and possession of a deadly weapon during the commission of a
felony. (D.I. 60 Ex. A-68) The case was then transferred to the Delaware Court of Common
Pleas and set for trial on the lesser included misdemeanor offenses of menacing and third degree
conspiracy, pursuant to 11 Del. C.§ 511. (!d. at A-68; A-83-84). The Court of Common Pleas
later dismissed the charges pursuant to Del. C. C. P. Crim. R. 48(b) due to the prosecution's
delay in bringing the case to trial. (!d. at A-84)
REQUEST FOR COUNSEL AND RULE 17(c)
Johnson requests counsel on the grounds that he is mentally ill, has had mental
breakdowns several times in the past year, "is suffering from bi-polar, schizo delusion thought,
seeing, and hearing things that not there and/or should not be there," depression, and anxiety.
(D.I. 70, 72, 76)
Federal Rule of Civil Procedure 17(c)(2) provides that "[t]he court must appoint a
guardian ad litem- or issue another appropriate order- to protect a minor or incompetent person
who is umepresented in an action." The United States Court of Appeals for the Third Circuit has
determined that the district court has a responsibility, under Rule 17(c)(2), to inquire sua sponte
into whether a pro se litigant is incompetent to litigate his action and is, therefore, entitled to
either appointment of a guardian ad litem or other measures to protect his rights. See Powell v.
Symons, 680 F.3d 301, 307 (3d Cir. 2012).
The Court considers whether Rule 17(c) applies "[i]f a court [is] presented with evidence
from an appropriate court of record or a relevant public agency indicating that the party had been
adjudicated incompetent, or if the court receive[ s] verifiable evidence from a mental health
professional demonstrating that the party is being or has been treated for mental illness of the
type that would render him or her legally incompetent." !d. The Court "need not inquire sua
sponte into a pro se plaintiff's mental competence based on a litigant's bizarre behavior alone,
even if such behavior may suggest mental incapacity." !d. at 303 (citations omitted). The
decision whether to appoint a next friend or guardian ad litem rests with the sound discretion of
the district court. See id.
In the instant action, Johnson makes bald allegations of mental illness, but he has not
submitted any verifiable evidence of incompetence to this Court. 6 Thus, this Court has no duty to
conduct a sua sponte determination of competency under Rule 17(c)(2).
A prose litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 7 See Brightwell v. Lehman, 63 7 F .3d 187, 192 (3d Cir. 2011 ); Tabron
The record contains a letter from Debbie Snyder ("Snyder"), a therapist at Connections
Community Support Programs ("Connections"), dated June 29, 2010, stating that Johnson is a
client of Connections outpatient clinic and is compliant with his appointments. (D.I. 29 at 5)
Connections is a not-for-profit organization that provides community-based housing, health care
and employment services in Delaware. See www.connectionscsp.org. Snyder does not indicate
what services were provided to Johnson at that time. Johnson has been in and out prison since
the date of the letter. It is unknown if he continues to receive services at Connections.
See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d)- now§ 1915(e)(l)- does not authorize federal court to require unwilling attorney to
represent indigent civil litigant, as operative word in statute is "request.").
v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiffs claim has arguable merit
in fact and law. See Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the Court should consider a number of factors when
assessing a request for counsel. Factors to be considered include: (1) the merits of the plaintiffs
claim; (2) the plaintiffs ability to present his or her case considering his or her education,
literacy, experience, and the restraints placed upon him or her by incarceration; (3) the
complexity of the legal issues; (4) the degree to which factual investigation is required and the
plaintiffs ability to pursue such investigation; (5) the plaintiffs capacity to retain counsel on his
or her own behalf; and (6) the degree to which the case turns on credibility determinations or
expert testimony. See Montgomery v. Pinchak, 294 F .3d 492, 498-99 (3d Cir. 2002); Tabron, 6
F.3d at 155-56. The list is not exhaustive, nor is any one factor determinative. See Tabron, 6
F.3d at 157.
After reviewing Johnson's requests, the Court concludes that this case is not so factually
or legally complex that requesting an attorney is warranted. To date, the filings in this case
demonstrate Johnson's ability to articulate his claims and represent himself. In addition, the
Court was provided with a transcript of a preliminary hearing wherein Johnson refused counsel
and proceeded prose. The transcript shows Johnson's ability to represent himself in open court,
including by effective cross-examination. In these circumstances, the Court will deny without
prejudice to renew Johnson's requests for counsel. (D.I. 70, 72, 77)
"The court shall grant summary judgment 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). The moving party bears the burden of demonstrating the absence of a genuine
issue ofmaterial fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 n.l 0 (1986). An assertion that a fact cannot be- or, alternatively, is- genuinely disputed
must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). Ifthe moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podohnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" and a factual dispute is genuine only where "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, 247-48 (1986). "If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Jd. at 249-50 (internal citations omitted); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of 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").
Thus, the "mere existence of a scintilla of evidence" in support of the non-moving party's
position is insufficient to defeat a motion for summary judgment; there must be "evidence on
which the jury could reasonably find" for the non-moving party. Anderson, 477 U.S. at 252.
Crocker filed a Motion for Summary Judgment on October 6, 2011. (D.I. 58) Johnson
did not file a timely response and, subsequently, the Court entered an Order setting a new
briefing schedule, with Johnson's answering brief due on March 14, 2012. (D.I. 61) The Order
was sent to his address of record. It was not returned as undeliverable. Yet Johnson did not file
an opposition to the Motion. Johnson was reincarcerated on April 24, 2012 and, thereafter, filed
several Requests for Counsel. (D.I. 63, 70, 72, 74, 76) On May 9, 2012, the clerk's office sent
Johnson a copy of the court docket, free of charge. (D.I. 79) Nonetheless, Johnson did not file
an opposition to the Motion for Summary Judgment. Prior to his April 2012 reincarceration,
Johnson had taken no action in the case since August 19,2011. (D.I. 57, 63)
The Court is mindful that Johnson did not file an opposition to Crocker's motion for
summary judgment. The Court will not grant the entry of summary judgment without
considering the merits of Crocker's motion, although unopposed. See Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (holding that district court should not have granted
summary judgment solely on basis that motion for summary judgment was not opposed).
Crocker moves for summary judgment on the grounds that Johnson cannot succeed in
demonstrating a lack of probable cause for his arrest. 8 (D.I. 59) More particularly, Crocker
argues that the probable cause determination made at Johnson's preliminary hearing conclusively
established the existence of probable cause to arrest him, defeating Johnson's § 1983 and State
law claims for false arrest, false imprisonment, and malicious prosecution.
To succeed on false arrest and false imprisonment claims, Johnson must establish that
probable cause was lacking for his arrest and related detention. See Groman v. Township of
Manalapan, 4 7 F .3d 628, 634-36 (3d Cir. 1995). Probable cause to arrest exists when the facts
and circumstances known to the arresting officer are sufficient to warrant a reasonable person to
believe that an offense has been committed by the suspect. See United States v. Stubbs, 281 F.3d
109, 122 (3d Cir. 2002); Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). Although the issue
of probable cause is usually a factual one, a district court may conclude "that probable cause did
exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not
The summary judgment motion also seeks summary judgment on behalf of the City of
Wilmington. The City of Wilmington is no longer a party and, therefore, the Court does not
address this portion of the motion.
support a contrary factual finding;" in such a circumstance, the Court may enter summary
judgment. See Estate ofSmith v. Marasco, 318 F.3d 497,514 (3d Cir. 2003).
When a plaintiff challenges probable cause to file charges on the basis that the officer
submitted a false affidavit to the judicial officer, the plaintiff has the burden of proving two
elements. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). Johnson must first
establish that "[Crocker] knowingly and deliberately, or with a reckless disregard for the truth,
made false statements or omissions in his affidavit of probable cause that create a falsehood in
applying for an arrest warrant; and  such statements or omissions are material to the finding of
probable cause." Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 789 (3d Cir. 2000) (citing
Franks v. Delaware, 438 U.S. 154, 171-72 (1978); Sherwood, 113 F.3d at 399). An omission is
made with reckless disregard for the truth when "an officer withholds a fact in his ken that any
reasonable person would have known ... was the kind of thing the judge would wish to know."
Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (internal quotation marks omitted).
Statements are made with reckless disregard for the truth if the officer or affiant proffers them
"with [a] high degree of awareness oftheir probable falsity." Lippay v. Christos, 996 F.2d 1490,
1501 (3d Cir. 1993) (internal quotation marks omitted).
Here, the affidavit of probable cause and preliminary hearing testimony indicate that:
(1) Johnson was identified by others as an individual who had attempted robbery and who had
been holding and waving a machete at individuals; (2) Crocker saw Johnson running in the area
for unknown reasons; and (3) a machete knife was recovered from Clark, a friend of Johnson's
who had been with Johnson and who had fled the scene. Even viewing the facts in the light most
favorable to Johnson, the credible identification of Johnson as the person who had attempted
robbery and who had waved a machete at others, coupled with the Clark's possession of a
machete, was sufficient to establish probable cause to arrest Johnson.
Because Crocker had probable cause to arrest Johnson, the false imprisonment and
malicious prosecution claims fail as a matter oflaw. See Groman v. Township of Manalapan, 47
F.3d 628, 636 (3d Cir. 1995) (false imprisonment); Estate ofSmith, 318 F.3d at 521 (holding that
malicious prosecution plaintiff must show, inter alia, that criminal proceeding was initiated
without probable cause). The fact that the criminal charges were eventually nolle prossed does
not save Johnson's claims. See Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002) (noting
grant of nolle prosequi that does not establish actual innocence cannot be used as basis for
establishing malicious prosecution).
Finally, there is no evidence to support Johnson's claim that Crocker violated Johnson's
constitutional rights when he failed to arrest the individual who allegedly robbed Johnson. Upon
review of the record, the Court finds that a reasonable jury could not return a verdict for Johnson
on this issue.
For the above reasons, the Court will grant Crocker's motion for summary judgment.
Because summary judgment is appropriate as to Johnson's federal claims, the Court will decline
to exercise supplemental jurisdiction to the extent Johnson raises state law claims. See 28 U.S.C.
§ 1367(c); De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003).
For the above reasons, the Court will grant Crocker's Motion for Summary Judgment,
will deny without prejudice Johnson's Requests for Counsel, and will deny as moot Johnson's
remaining motions. (D.I. 58, 70, 72, 73, 74, 76, 77) The Court will decline to exercise
An appropriate Order follows.
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