Russell v. Lowman et al

Filing 51

MEMORANDUM. Signed by Judge Sue L. Robinson on 2/10/2017. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SHAWN RUSSELL,

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Plaintiff,
v.

CORPORAL SUZANNE LOWMAN,
TROOPER RYAN KIRCHENBAUER,
CORPORAL ADALBERTO GARCIA,
and SERGEANT JOHN LLOYD,
Defendants.

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) Civ. No. 15-860-SLR
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MEMORANDUM
At Wilmington this \dfciay of February, 2017, having reviewed defendants' motion
for summary judgment and the papers submitted in connection therewith, the court
issues its decision based on the following reasoning:
1. Background. Plaintiff Shawn Russell ("plaintiff') filed a complaint against the
above named defendants related to his detention by police on September 25, 2013.
More specifically, plaintiff alleged in his complaint that, "[a]s a direct and proximate
result" of defendants' conduct, "committed under color of state law," he was
deprived of his Fourth Amendment right to be free from unreasonable
force, the excessive use of force, false arrest, illegal search and seizure,
and to be secure in his person and property and he was deprived of his
Fourteenth Amendment rights of being free from malicious prosecution
and he was denied his liberty without due process of law. As a result,
[he] suffered and continues to suffer harm in violation of his rights under
the laws and Constitution of the United States, in particular the Fourth
and Fourteenth Amendments thereof, and 42 U.S.C. [§] 1983.

(D.I. 1 at 8) After the completion of discovery, defendants moved for summary
judgment. The court has jurisdiction over the pending matters pursuant to 28 U.S.C. §§
1331and1343.
2. Undisputed facts. On September 25, 2013, Sergeant John Lloyd
("defendant Lloyd"), the head of the Delaware State Police (''DSP") Drug Unit, received
information from a confidential informant that an individual named William Camp
("Camp") was distributing heroin in New Castle County, and that Camp would be
making a sale of heroin that night at a local restaurant. Defendant Lloyd assembled a
stakeout crew of officers at the restaurant. The officers first saw Camp's vehicle arrive.
They then saw a second vehicle (a Suburban) pull up in close proximity to Camp's car.
The Suburban left, and defendant Lloyd directed Corporal Adalberto Garcia ("defendant
Garcia") to follow. The remaining officers proceeded to detain Camp. Camp told the
officers that the driver of the Suburban had the drugs, and that Camp had directed him
to leave. (D.I. 36 1 at 132-37; D.I. 47 at 2)
3. With that information, defendant Lloyd put a broadcast over the radio for
defendants Garcia, Corporal Suzanne Lowman ("defendant Lowman"), and Trooper
Ryan Kirchenbauer ("defendant Kirchenbauer") to stop the Suburban. Defendants
Lowman and Kirchenbauer were in the same vehicle and heard the radio broadcast to
stop the Suburban as part of a drug investigation. They activated their emergency
equipment and pulled the Suburban over on the right shoulder of west Route 273. (D.I.
36 at 113-14, 137; D.I. 47 at 2) "As part of the stop, Plaintiff's vehicle was searched ...

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Page numbers referenced are to the assigned A-#.

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. After the vehicle stop and search, Plaintiff was transported to Delaware State Police
Troop 2 Barracks." (D.I. 47 at 2) "While Plaintiff was detained at the barracks, he was
subjected to a strip search and after approximately 30 minutes was released. Several
days after Plaintiff's release, Defendant Sergeant Lloyd applied for and obtained a
warrant for Plaintiff's arrest charging him with possession of a controlled or counterfeit
substance. Plaintiff was later indicted by a Grand Jury on the same charge. On April
14, 2014 the Attorney General for the State of Delaware nolle pressed all charges
against the Plaintiff." (D.I. 47 at 3)
4. Plaintiff and defendants have given different accounts of what happened
during the stop and what happened at the police station where plaintiff was
subsequently detained. Plaintiff no longer disputes, however, that defendants "had a
legitimate reason to stop" plaintiff's car, and that defendants had "cause to detain the
plaintiff and bring him back to Troop 2 for questioning." (D.I. 38 at 7)
5. Standard of review. "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 of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 475, 586 n. 10 (1986). A party

asserting 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 motions only), admissions,
interrogatory answers, or other materials," or by "showing that the materials cited do not

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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)(1 )(A) &
(B). If the 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, 415 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. 133, 150 (2000).
6. 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 586-87; see also Podohnik v. U.S. Postal Service, 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). Although the "mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment," a factual dispute is genuine 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."

Id. 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").

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7. Excessive force claims. Plaintiff claims that one (or more) law enforcement
officers at the stop struck him in the face, and that one of said officers grabbed
plaintiff's face and put his hands in plaintiff's mouth while the other officers were striking
plaintiff in the back. (D.I. 47 at 3) Defendants contend that no force was used on
plaintiff at any time during the course of the stop. (Id.) The parties agree that plaintiffs
excessive force claims "are properly analyzed under the Fourth Amendment's 'objective
reasonableness' standard," as articulated in Graham v. Connor, 490 U.S. 386, 388
(1989). In this regard, the Supreme Court explained in Graham that "[w]here, as here,
the excessive force claim arises in the context of an arrest or investigatory stop of a free
citizen, it is most properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right 'to be secure in their persons ...
against unreasonable ... seizures' of the person." Id. at 394. Such excessive force
claims, therefore, should be analyzed under the Fourth Amendment's "reasonableness"
standard. Id. at 395.
Determining whether the force used to effect a particular seizure is
"reasonable" under the Fourth Amendment requires a careful balancing
of "'the nature and quality of the intrusion of the individual's Fourth
Amendment interest"' against the countervailing governmental interests
at stake .... Our Fourth Amendment jurisprudence has long recognized
that the right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof
to effect it. . . . Because "[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application,"
... , however, its proper application requires careful attention to the facts
and circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight. ...
The "reasonableness" of a particular use of force must be judged from the

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perspective of a reasonable officer on the scene, rather that with the 20/20
vision of hindsight. . . . The calculus of reasonableness must embody
allowance for the _fact that police officers are often forced to make splitsecond judgments - in circumstances that are tense, uncertain, and
rapidly evolving - about the amount of force that is necessary in a
particular situation.
Id. at 396-97 (citations omitted).

8. As noted, plaintiff at bar claims that "one or more of the Defendant troopers
struck him in the face, grabbed his face and put his hand in his mouth while another
trooper was striking him in the back." (D.I. 47 at 3) Plaintiff cannot identify specifically
which officers landed which blows. He testified at his deposition, however, that he had
not yet stopped the Suburban when the officers approached the vehicle, and that it was
three Caucasian males who pulled him out of the Suburban allegedly with excessive
force. (D.I. 36 at 47, 49) Defendants deny using any kind of force on plaintiff, recalling
the stop as uneventful and plaintiff as compliant. (Id. at 107, 117, 123) Other than
plaintiff's deposition testimony, there is no evidence 2 that any force, let alone excessive
force, was exerted against plaintiff during the stop at issue. The court must determine,
therefore, whether plaintiff's deposition testimony should be deemed sufficient evidence
to withstand a motion for summary judgment. If plaintiff were proceeding pro se, the
answer probably would be "yes," as the Third Circuit has accepted an inmate's
testimony as true for purposes of summary judgment, noting that '"an inmate who is
proceeding pro se ... is in a decidedly difficult position from which to generate 'record
evidence' on his behalf ... [and] under these circumstances, his affidavits ... are about

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For example, there is no contemporary medical report describing injuries
sustained at the time.

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the best that can be expected from him [at the summary judgment phase of] the
proceedings."' Robinson v. Beckles, 2016 WL 7364148, at *2 (3d Cir. Dec. 19, 2016)
(citation omitted). Plaintiff at bar, of course, has been represented by counsel and
there has been a full opportunity for discovery. The only evidence presented in
opposition to that presented by defendants - to wit, plaintiff's deposition testimony adds nothing to the bare allegations of the complaint.
9. The record does indicate that officers other than those named in the
complaint may have participated in plaintiff's detention. (See, e.g., 0.1. 36 at 115, 124,
185-86) According to plaintiff, "[w]here the plaintiff has no recollection of the acts or
was unable to observe what the officers were doing, the jury is entitled to draw
reasonable inferences from circumstantial evidence," citing non-Third Circuit precedent
such as Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007); Miller v.
Smith, 220 F.3d 491, 495 (7th Cir. 2000); and Simpson v. Hines, 903 F.2d 400, 403

(5th Cir. 1990). In these cases, there apparently was no dispute that the plaintiff was in
fact attacked; the only question was whether the plaintiff had to identify which of several
officers present at the scene landed the blows. As explained by the court in Miller,
while it is true that a plaintiff must establish a defendant's personal
responsibility for any claimed deprivation of a constitutional right, a
defendant's direct participation in the deprivation is not required ....
"An official satisfies the personal responsibility requirement of§ 1983
if she acts or fails to act with a deliberate or reckless disregard of the
plaintiff's constitutional rights." ... Under this rule, police officers who
have a realistic opportunity to step forward and prevent a fellow officer
from violating a plaintiff's rights through the use of excessive force
but fail to do so have been held liable.
Miller, 220 F.3d at 495 (emphasis in original) (citations omitted). The facts at bar, of

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course, are one step removed from those examined in the case law cited by plaintiff, as
the use of force itself is disputed.
10. In sum, the court is not addressing a motion to dismiss and, therefore, is not
obligated to accept plaintiff's allegations as true. Plaintiff had the opportunity to conduct
discovery, and has presented nothing more than his allegations, albeit in the form of
deposition testimony. Under these circumstances and based on the record created
during the litigation process, the court concludes that plaintiff has not presented
sufficient evidence to enable a jury to reasonably find that the named defendants used
excessive force during the September 25, 2013 stop. Defendants' motion for summary
judgment is granted in this regard. 3
11. Remaining claims. As the court understands these claims, plaintiff
contends that, because no pills (illicit or otherwise) were found in the Suburban but,
rather, were fabricated by defendant Lloyd, the strip search conducted at Troop 2, as
well as his subsequent arrest and indictment are violative of plaintiff's constitutional
rights. (D.I. 47 at 5) Plaintiff has conceded that "the statement made by Camp ...
gave the Defendants cause to detain the Plaintiff and bring him back to Troop 2 for
questioning." (D.I. 38 at 7) The record indicates that DSP policy includes the following
guidance as to strip searches: "A strip search will be utilized when the arresting officer
reasonably suspects that weapons, contraband or evidence may be concealed upon
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1n Simpson, cited by plaintiff, the court granted qualified immunity to an officer
when there was "no indication whatever that he used any physical force against
Simpson, let alone force that a reasonable officer would have known was excessive."
903 F.2d at 403. Given plaintiff's admission that defendant Lowman had no role in the
alleged forceful conduct (D.I. 36 at 56), the court also grants defendants' motion for
qualified immunity as to defendant Lowman.
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the person or in the clothing in such a manner that it may not be discovered by previous
search methods." (0.1. 36 at 153) The "Documentation Report" related to the strip
search of plaintiff provides the reason given for the search: "The defendant
[presumably plaintiff at bar] was found to be engaging in a suspected heroin
investigation. The amount of heroin being delivered, which was confirmed by the
defendant, was unable to be located. The defendant was being evasive in the alleged
location of the heroin, therefore a strip search was conducted. The defendant was
furthermore in possession of Oxycodone prescription medication." (Id. at 184) Plaintiff
was detained at Troop 2 from 2327 to 0008 on September 23-24, 2013; the search was
conducted between 2327 and 2331 on September 23, 2013. (Id.)
12. The police report filled out by defendant Lloyd described what happened
during plaintiff's detention as follows:
Upon arrival at Troop 2, I was notified that the pills located in the Suburban
were identified as non-controlled prescription heart medication.[4 ] At this point,
I removed Russell from the Troop 2 holding cell area and conducted an
interview with him. The interview was conducted on the basis of his being
a witness to the Camp investigation. Russell denied the fact that he knew
Camp and agreed his actions at TGIFriday's appeared suspicious. Russell
reported he did not see anyone in the parking lot, therefore he left with the
intent on going home. Russell stated the pills in the vehicle were not his.
Russell was released from Troop 2.

(Id. at 158) According to plaintiff's deposition testimony, the Suburban did not belong to
him but, rather, it belonged to a friend named Sherry Williams. (Id. at 34-36)
According to defendant Lloyd, he interviewed plaintiff before he interviewed Camp; it
was only after plaintiff's interview that Camp recanted any involvement of plaintiff in the

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0efendant Garcia has no recollection of either finding the pills or of identifying
them. (0.1. 36 at 107)
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heroin transaction. Subsequent to plaintiff's release, defendant Lloyd looked up the
pills found in the Suburban, and saw that they were Oxycodone. (Id. at 142, 159) A
warrant issued for plaintiff's arrest, based on a probable cause finding that plaintiff
possessed five Oxycodone pills, a Schedule II narcotic, while operating a 2004
Chevrolet Suburban. (Id. at 147-50) An indictment was returned having the same
charge, which charge was later dismissed.
13. The court recognizes that the probable cause findings that supported the
arrest warrant and indictment in this case are a sufficient basis to grant defendants'
motion for summary judgment on plaintiff's false arrest and malicious prosecution
claims, see Doe v. Attorney General of U.S., 659 F.3d 266, 273 at n.4 (3d Cir. 2011),
or, alternatively, on defendants' motion for qualified immunity as to defendant Lloyd,

see Malley v. Briggs, 475 U.S. 335, 345 (1986). There is also no evidence that plaintiff
suffered a deprivation of liberty after the issuance of the arrest warrant. See DiBella v.

Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). With respect to plaintiff's
allegations that defendant Lloyd fabricated evidence to support the arrest warrant and
indictment, the court notes, first, that defendant Garcia's lack of recollection is
"insufficient to raise a genuine issue of material fact." Metlife Securities, Inc. v. Holt,
2016 WL 6683586, at 4 (E.D. Tenn. 2014). Moreover, the Third Circuit opinion upon
which plaintiff bases his fabrication of evidence claim is not on all fours with the facts of
this case, where plaintiff was never tried for the drug charge at issue and the harm
addressed by the Third Circuit in Black v. Montgomery Cty., 835 F.3d 358, 371 (3d Cir.
2016), as amended (Sept. 16, 2016), was corruption of the trial process. I decline to

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extend the reasoning in Black to the facts of record.
14. The court does find genuine issues of material fact regarding the strip
search, not as to how it was conducted but whether it was justified in the first instance.
The record is replete with inconsistencies in this regard. Specifically, the
"Documentation Report" related to the strip search is completely at odds with defendant
Lloyd's police report and its chronology, as well as with defendant Lloyd's deposition
testimony. 5 As noted by plaintiff, strip searches are the most intrusive of searches
conducted by governmental officials, and courts have "understood that the humiliating
and essentially non-productive practice of strip searching pre-arraignment arrestees not
held in the general population is an unreasonable search under the Fourth Amendment
in the absence of reasonable suspicion." Johnson v. Government of District of
Columbia, 734 F.3d 1194, 1206 (D.C. Cir. 2013) (Rogers concurring). Viewing the

record in the light most favorable to plaintiff, the non-moving party, the court finds
genuine issues of material fact as to whether defendant Lloyd had reasonable suspicion
to believe that plaintiff was hiding contraband or other evidence. Defendants' motion
for summary judgment is denied in this regard as to defendant Lloyd.
15. Conclusion. For the reasons stated, defendants' motion for summary

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For instance, the justification for the strip search identifies plaintiff as a suspect
who "confirmed" the fact that heroin was being delivered, but was "evasive" about the
heroin's location. Plaintiff was described in the "Documentation Report" as being in
possession of Oxycodone. (D.I. 36 at 184) In contrast, defendant Lloyd's summary of
his interview with plaintiff described plaintiff as a witness and the pills as heart
medication, thus justifying plaintiff's release; the pills were not identified as Oxycodone
until after plaintiff's release. (Id. at 158)
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judgment is granted, 6 except for plaintiff's Fourth Amendment claim against defendant
Lloyd relating to the strip search. An order shall issue.

Senior UnitedtateSDiStriCt Judge

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Plaintiff apparently is not pursuing his state law claims and, therefore, the court
will not address them in this memorandum.

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