PELLEGRINO et al v. UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION et al

Filing 195

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 8/11/14. 8/13/14 ENTERED AND COPIES E-MAILED AND MAILED TO PRO SE PLFF.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NADINE PELLEGRINO AND
HARRY WALDMAN,
Plaintiffs,
v.
UNITED STATES OF AMERICA
TRANSPORTATION SECURITY
ADMINISTRATION, et. al.,
Defendants.

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CIVIL ACTION
NO. 09-5505

MEMORANDUM & ORDER
JOYNER, J.

AUGUST 11, 2014

Before the Court are Defendants’ Motion for Reconsideration
(Doc. No. 178), and Plaintiff’s Consolidated Motion for
Reconsideration and Opposition to Defendants’ Motion for
Reconsideration Part I (Doc. No. 182) and Part II (Doc. No. 188),
as well as Plaintiff’s Exhibits (Doc. Nos. 183, 184, 185, 186,
187) and Defendants’ Response in Opposition to Plaintiff’s Motion
for Reconsideration (Doc. No. 192). Also before the Court is
Plaintiff’s Motion for Leave to File Under Seal Confidential
Information From Defendant Abdul-Malik’s Video Deposition
Transcript (Doc. No. 191).
For the reasons outlined in this Memorandum, it is hereby
ORDERED that Defendants’ Motion for Reconsideration (Doc. No.
178) is GRANTED in part, Plaintiff’s Motion for Reconsideration
(Doc. No. 182) is DENIED in part, and Plaintiff’s Motion For
Leave to File (Doc. No. 191) is DENIED.
1

II.

BACKGROUND
The parties request the Court to reconsider its Order on

Defendants’ Motion for Summary Judgment (Doc. No. 175). In that
Order and accompanying Memorandum (Doc. No. 174), the Court based
its evaluation on Defendants’ Motion for Summary Judgment and
accompanying exhibits (Doc. No. 156). Plaintiffs did not file a
timely Memorandum of Law in Opposition to Defendants’ Motion for
Summary Judgment, despite receiving five extensions of time.
(Doc. Nos. 160, 163, 166, 168, 170). After the last filing
deadline had passed, Plaintiffs requested leave to file a few
exhibits under seal (Doc. No. 173), which the Court granted, and
considered these exhibits in its evaluation.
Defendants move the Court to reconsider the portion of its
Order denying Defendants’ claims of qualified immunity on
Plaintiff’s claims of retaliatory and malicious prosecution under
the First and Fourth Amendments as to Defendants Abdul-Malik and
Labbee.
Plaintiffs oppose Defendants’ Motion, and also request the
Court to reconsider the portion of its Order determining that
probable cause existed for Plaintiff’s arrest on charges of
aggravated assault, possessing instruments of a crime, simple
assault, and recklessly endangering another person. Plaintiffs
also move to reinstate claims against TSO Denice Kissinger, TSA
officials Scully and Eckl; claims under FOIA and the Privacy Act;

2

and Plaintiff’s claims for failure to train, supervise, and
control, and a claim for intentional infliction of emotional
distress.
In their response, Defendants also request the Court to
dismiss all of Plaintiffs’ remaining claims, including
Plaintiff’s property damage claim, based on Plaintiff’s willful
disobedience of Court orders and noncompliance with Rule 26
disclosure obligations, and bring to the Court’s attention the
lack of evidence substantiating the alleged property damage.
Because the facts of the case are well known to the parties,
the Court incorporates those facts here.
III. STANDARD OF REVIEW
“The purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985)(internal citation omitted). An order may be altered or
amended if the party seeking reconsideration shows at least one
of the following: (1) an intervening change in the controlling
law; (2) the availability of new evidence that was not available
when the court granted the motion for summary judgment; or
(3) the need to correct a clear error of law or fact or to
prevent manifest injustice. Howard Hess Dental Laboratories Inc.
v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010).
Although “courts often take a dim view of issues raised for

3

the first time in post-judgment motions,” reconsideration is the
“appropriate means of bringing to the court’s attention manifest
errors of fact or law” and courts may not decline to consider
issues fundamental to the case. Max’s Seafood Café ex rel. Lou
Ann-Inc. v. Quinteros, 176 F.3d 669, 678 (3d Cir. 1999)(internal
citations omitted).
However, while a Court may consider “new evidence that was
not available when the court granted the motion for summary
judgment,” Howard Hess Dental Laboratories, 602 F.3d at 251,
“‘new evidence’, for reconsideration purposes, does not refer to
evidence that a party obtains or submits to the court after an
adverse ruling. Rather, new evidence in this context means
evidence that a party could not earlier submit to the court
because that evidence was not previously available.” Id. at 252
(emphasis added)(citing De Long Corp. v. Raymond Int’l, Inc., 622
F.2d 1135, 1139-40 (3d Cir. 1980), overruled on other grounds by
Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981)(en banc)). This
standard applies equally to litigants who proceed pro se. See,
e.g., Watson v. City of Philadelphia, Civ. A. 06-0883, 2006 WL
2818452 at *3 (E.D. Pa. Sept. 28, 2006).
Because Plaintiff and Defendants request reconsideration of
the Court’s summary judgment order, the Court incorporates the
standards governing Federal Rule of Civil Procedure 56 here. Once
a party seeking summary judgment has identified those portions of

4

the record which it believes demonstrates an absence of a genuine
issue of material fact, the nonmoving party has the burden of
going “beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Summary judgment may be opposed by any of the materials
listed in Rule 56(c), except for the mere pleadings. Id.
Additionally, “[w]hile it is certainly true that a party’s
statements may be evidence for the purposes of a motion for
summary judgment if they are sworn statements such as
declarations or affidavits,” an unsworn statement of material
facts cannot properly be considered as evidence in satisfying the
non-moving party’s burden. Geatti v. Min-SecCompanies, 3:12-cv32, 2013 WL 5488720 at *3 (M.D. Pa. Sept. 30, 2013).
IV.

ANALYSIS
Both parties have filed Motions for Reconsideration of the

Court’s April 16, 2014 Order. The Court will consider both
Motions on their merits.1 First, however, the Court addresses the
evidence that it may properly consider in its analysis.
In addition to her Consolidated Motion, Plaintiff filed
numerous exhibits, including but not limited to a statement of

1

Plaintiff requested and received an extension to file her Consolidated
Motion on or before May 28, 2014. (Doc. No. 181). Plaintiff filed her Motion
on June 2, 2014. (Doc. Nos. 182, 183). The Court exercises its discretion to
accept and consider this Motion.

5

material facts, deposition transcripts and videos, Incident
Reports, and hand-drawn and computer-processed layouts of
portions of the Philadelphia International Airport. See (Doc.
Nos. 182, 183, 184, 185, 186, 187). Plaintiff argues that the
“new facts that have not been known, addressed, or have been
addressed but not considered, or facts that recently came to
light” (Pl. Motion for Reconsideration, Doc. No. 182, at 3)
substantiate her claims and must be considered by the Court.
However, the Court is precluded as a matter of law from
considering this evidence at this late stage, and has no
discretion to do so. Howard Hess Dental Laboratories, 602 F.3d at
252; Blystone v. Horn, 664 F.3d 397, 416 (3d Cir.
2011)(“[e]vidence that is not newly discovered . . . cannot
provide the basis for a successful motion for reconsideration.”)
Plaintiff does not contend that the evidence she submits now was
unavailable to her prior to the Court’s summary judgment Order,
nor does she argue that she was unable to submit it at that time.
Plaintiff does not explain when these purportedly new facts came
to light, does not state that they came to light after the
summary judgment stage, and what, if anything, prevented her from
submitting them with a timely motion at summary judgment. It
appears that Plaintiff is simply submitting at this stage the
evidence she obtained during discovery and failed to timely
submit earlier. Thus, the Court is prevented from considering

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Plaintiff’s exhibits or other additional evidence, Howard Hess
Dental Laboratories, 602 F.3d at 252, Plaintiff’s pro se status
notwithstanding. See, e.g., Watson, 2006 WL 2818452 at *3.
Thus, Plaintiff’s Motion For Leave to File (Doc. No. 191) is
denied because the Court may not consider evidence that is not
newly-discovered.
Plaintiff also references “substantial documentation in
[her] past pleadings,” (Pl. Memo. of Law, Doc. No. 182-1 at 2-3),
including her first complaint (Pl. Mot. for Recon. Doc. No. 182
at 3), that she believes support her claims. The Court has
considered Plaintiff’s submissions as they related to the
numerous and often lengthy motions filed by the parties since
this case commenced in 2009.2 Once a moving party has informed
“the district court of the basis for its motion” for summary
judgment, Celotex, 477 U.S. at 323, the nonmoving party must
identify specific facts showing there is a genuine issue for
trial. Id. at 324. However, Plaintiff filed only a few untimely
exhibits in response to Defendants’ Motion for Summary Judgment.
The Court considered these exhibits. Moreover, Plaintiff’s
complaint and unsworn statements of materials facts are not
proper materials with which to oppose a motion for summary

2

The Docket for this case contains over one hundred and ninety
documents, many of which include exhibits. To oppose Defendants’ Motion for
Summary Judgment, Plaintiff had the responsibility of drawing the Court’s
attention to evidentiary materials which she believed created a genuine issue
of material fact.

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judgment. Celotex, 477 U.S. at 323-24; Geatti, 2013 WL 5488720 at
*3. The Court thus confines its analysis to the evidence before
it at summary judgment: Defendants’ Motion for Summary Judgment
exhibits (Doc. No. 156) and Plaintiffs’ exhibits (Doc. No. 173)
filed prior to the Court’s Summary Judgment Order.
A.

CLAIMS OF RETALIATORY AND MALICIOUS PROSECUTION
The parties’ motions focus primarily on Plaintiff’s claims

fo retaliatory prosecution under the First Amendment and
malicious prosecution under the Fourth Amendment. Defendants
argue that the Court should reconsider its previous Order because
Plaintiff lacks evidence indicating that the individual
defendants induced prosecution, and because the existence of
probable cause as to a more serious charge permits summary
judgment as to the lesser charge of terroristic threats. The
Court agrees and addresses these arguments first.
1.

Plaintiff’s Evidence on Causation

In both a retaliatory prosecution claim under the First
Amendment and a malicious prosecution claim under the Fourth
Amendment, a plaintiff must show that “the nonprosecuting
official . . . induced the prosecutor to bring charges that would
not have been initiated without his urging.” Hartman v. Moore,
547 U.S. 250, 262 (2006); Halsey v. Pfeiffer, 750 F.3d 273, 29697 (3d Cir. 2014)(“if the officers influenced or participated in
the decision to institute criminal proceedings, they can be

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liable for malicious prosecution.”); see also Rehberg v. Paulk,
611 F.3d 828, 850 (11th Cir. 2010) aff’d, 132 S. Ct. 1497
(2012)(a plaintiff “must show [defendant’s] retaliation against
[plaintiff] successfully induced the prosecution and was the butfor cause of the prosecution.”)
Plaintiff produced no evidence at the summary judgment stage
that would allow a reasonable jury to draw conclusions about the
charging police officer’s or prosecutor’s basis for instituting
criminal proceedings. Though Plaintiffs vehemently argue that the
officers and prosecutor relied solely on false and malicious
statements from Defendant TSOs in their decision, the evidence
submitted at summary judgment was insufficient, when viewed in
the light most favorable to Plaintiff, to support such a
conclusion.
In Halsey v. Pfeiffer, the Third Circuit found that the
plaintiff had adduced sufficient evidence showing that a false
confession induced and supplemented by defendants “contributed to
the prosecutor’s decision” to charge the plaintiff. 750 F.3d at
279. In that case, the prosecutor testified that he sat outside
of the interrogation room and relied on pages of the plaintiff’s
confession as they were slid under the door to him by defendant
police officers. Id. at 298. At some point, after reviewing at
least a few pages of the confession that defendants had drafted,
the prosecutor believed that the evidence justified the

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initiation of criminal proceedings against the plaintiff. Id.
Thus, the Third Circuit found, a reasonable jury could find that
the contents of the doctored confession encouraged the prosecutor
to initiate prosecution. Id. at 299.
In the instant case, in contrast, the Court has before it no
insight into the influence of Defendant TSOs’ statements on the
charging officer or prosecutor, nor whether and to what extent
those statements infected their decision to proceed. Though
Plaintiff submitted two Arrest Reports and Incident Reports (Doc.
No. 173, Exs. 145A, 145 B, 194A, 194B), they did not, for
example, submit depositions or other testimony of the arresting
officer, charging officer, or prosecutor, or other evidence
illuminating the import of Defendant TSOs’ statements in the case
against Plaintiff. Plaintiffs’ two exhibits alone are
insufficient to “suspend the presumption of regularity behind the
charging decision.” Hartman, 547 U.S. at 265. For this reason,
the Court will not reconsider its grant of summary judgment on
Plaintiff’s retaliatory and malicious prosecution claims.
Additionally, the Court determines that summary judgment should
have been granted on Plaintiff’s retaliatory/malicious
prosecution claims based on all charges brought against her. See
Peals v. Terre Haute Police Dept., 535 F.3d 621, 627 (7th Cir.
2008)(“The record contains no evidence of . . . [defendant’s]
influencing the prosecutor’s decision to charge [Plaintiff] . . .

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The district court therefore properly granted summary judgment
for the officers on this claim.”)
2.

Plaintiff’s Evidence on Lack of Probable Cause

To advance her claims, Plaintiff must also prove “an absence
of probable cause supporting the prosecutor’s decision to go
forward.” Hartman, 547 U.S. at 265; Halsey, 750 F.3d at 296-97.
i.

Plaintiff’s Motion

Plaintiff did not submit evidence at summary judgment from
which a reasonable juror could conclude that there was a lack of
probable cause to arrest Plaintiff on charges of assault. While
Plaintiff has submitted with her Motion for Reconsideration
evidence that, she contends, severely undermines the credibility
of the complaining TSOs and raises questions about the
consistency and veracity of their accounts, and evidences the
arresting officer’s bias, the Court reiterates that it cannot
consider this evidence at this juncture. Howard Hess Dental
Laboratories, 602 F.3d at 252. The Court thus makes no
determination on whether or not this evidence, if it had been
timely filed, would have created a genuine issue of material fact
precluding summary judgment. Cf. Wilson v. Russo, 212 F.3d 781,
790 (3d Cir. 2000)(“substantial evidence of the witness’s own
unreliability that is known by the arresting officers could
outweigh the identification such that probable cause would not
exist.”) Thus, the Court stands by its previous determination

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that Plaintiff’s evidence was insufficient for a juror to
conclude that she was arrested without probable cause.
As for probable cause to initiate prosecution against
Plaintiff subsequent to her arrest, Plaintiff’s claim fails for
the reason explained above - she has submitted nothing to the
Court illuminating the facts available to the prosecutor “when he
made his discretionary decision to initiate the proceedings”
against Plaintiff. Halsey, 750 F.3d at 300. Thus, a jury could
not conclude that the prosecutor initiated proceedings without
probable cause.
The Court will, however, briefly address Plaintiff’s
contentions regarding inconsistency in Defendant Labbee’s
descriptions of the incident on various occasions, because
Plaintiff has referred the Court to trial transcripts filed in
March 2010 which the Court did not consider in its Summary
Judgment Memorandum.3 The March 28, 2009 transcript from
Plaintiff’s criminal trial, Commonwealth v. Nadine Pellegrino in
the Municipal Court of Philadelphia (Doc. No. 9, Ex. 15),
contains testimony from Defendant Labbee and TSO Kissinger. On
direct examination, when asked “What, if anything, did [Nadine
Pellegrino] do inside the room?”, Labbee replied, “[t]here was no

3

On March 16, 2010, Plaintiff filed a Motion to Extend Time for
Discovery (Doc. No. 9) and appended Exhibits 11A-16 in hard copy. The Court
has now retrieved these long-archived files and, because these exhibits were
technically on the record prior to the summary judgment stage (even if they
were not submitted at summary judgment), the Court has reviewed them for the
purposes of adjudicating Plaintiff’s Motion for Reconsideration.

12

physical contact inside of the room, if that’s what you’re
getting at.” (Doc. No. 9, Ex. 15 at 9). In contrast, on direct
examination TSO Kissinger testified that Nadine Pellegrino
“stepped out of her way and hit [Labbee] with [her] bag,” and
that this action took place “inside the private search area” when
Labbee was standing in the doorway holding the door open. Id. at
12. The Court then sustained an objection to this testimony. Id.
The Plaintiffs argue that Kissinger’s criminal trial testimony
conflicts with Labbee’s criminal trial testimony, Kissinger’s
later deposition (Doc. No. 172, Pl. Ex. 157), and Kissinger’s
initial report to the arresting officer.
The Court is not persuaded that this testimony creates a
genuine issue of material fact as to whether there was probable
cause to bring the charges of assault against Plaintiff. Viewing
the evidence in the light most favorable to Plaintiff, Defendant
Labbee’s criminal trial testimony is in fact inconsistent with
trial testimony by TSO Kissinger (Doc. No. 9, Ex. 15 at 12) and
the arresting officer’s report recording Labbee’s initial version
of the same incident. (Doc. No. 172, Pl. Ex. 194A). However, this
inconsistent testimony – which occurred at trial - does not
illuminate probable cause supporting the arrest and charges,
which occurred well before trial. The Court will not reconsider
its ruling based on these previously-filed exhibits.

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ii.

Defendants’ Motion

Defendants argue that the fact that “there was probable
cause to support the most serious charge against Plaintiff
(felony aggravated assault) must insulate [the Defendants] from
liability as to the lesser charge of terroristic threats as a
matter of law.” (Def. Motion for Reconsideration, Doc. No. 178 at
8). Defendants thus contend that the rule articulated in Wright
v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir. 2005) and not
Johnson v. Knorr, 477 F.3d 75, 84-85 (3d Cir. 2007), is
controlling given the facts in the instant case.
In Wright, an officer arrested Wright without a warrant for
burglary, theft, and criminal trespass. Wright, 409 F.3d at 598.
Upon review of the evidence, the Third Circuit concluded that
probable cause existed for Wright’s arrest for criminal trespass.
Id. at 603. The existence of probable cause for Wright’s arrest
and prosecution for criminal trespass also disposed of her
malicious prosecution claims with respect to all of the charges
against her, including burglary, theft, and criminal mischief.
Id. at 596, 604.
In contrast, in Johnson v. Knorr the Third Circuit held
that, while Wright was still good law, “a defendant initiating
criminal proceedings on multiple charges is not necessarily
insulated in a malicious prosecution case merely because the
prosecution of one of the charges was justified.” Johnson, 477

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F.3d at 85. The Court noted that Knorr’s involvement in the
arrest and initiation of criminal proceedings against Johnson was
more extensive than simply issuing an affidavit of probable cause
for his arrest, as it had been in Wright. Id. at 84. In Wright,
“the circumstances leading to the arrest and prosecution were
totally intertwined,” whereas Knorr’s conduct was “bifurcated”
because he took steps to supply information to the detective
after Johnson’s arrest that led to Johnson’s prosecution. Id. at
82 n. 9.
Quoting the Second Circuit’s holding in Posr v. Doherty, 944
F.2d 91, 100 (2d Cir. 1991), the Third Circuit expressed concern
in Johnson that “an officer with probable cause as to a lesser
offense could tack on more serious, unfounded charges which would
support a high bail or a lengthy detention, knowing that the
probable cause on the lesser offense would insulate him from
liability for malicious prosecution on the other offenses.” Id.
at 83. Additional unfounded charges are problematic because an
individual charge for a more serious offense “is likely to have
placed an additional burden on the plaintiff.” Id. at 85.
The Third Circuit has noted that “considerable tension
exists between our treatment of the probable cause element in
Johnson and our treatment of that element in the earlier case of
Wright v. City of Philadelphia . . . we recognize that the
holdings of these two cases are difficult to reconcile.” Kossler

15

v. Crisanti, 564 F.3d 181, 193-94 (3d Cir. 2009)(en banc). To
grapple with this tension, district courts should be mindful that
“the analysis of malicious prosecution claims involving multiple
charges is a fact-intensive one” and courts should “determine
which [case] provides the more appropriate framework to apply
given a set of facts.” Id. at 194. In a footnote, the en banc
panel in Kossler noted that if Third Circuit cases are in
conflict, the earlier is the controlling authority. 546 F.3d at
194 n.8. Thus, “if one of those two cases must control for
purposes of analyzing the probable cause element, it would be
Wright, not Johnson, that controls.” Id.
Upon reconsideration of the facts animating Pellegrino’s
case and after review of Third Circuit and Pennsylvania district
court caselaw, the Court concludes that Wright must control the
outcome here. The evidence before the Court at the summary
judgment stage suggests that TSOs Abdul-Malik and Labbee,
similarly to the officer in Wright, merely issued statements to
support Pellegrino’s arrest. Their “involvement apparently ended
at the time of arrest.” Johnson, 477 F.3d at 84. The Court was
presented with no evidence that they took further action, such as
providing advice to the police or prosecutor subsequent to the
arrest about which specific charges should be brought. Id.; see
also Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d
183, 204, 204 n.14 (3d Cir. 2008); Martin v. Anderson, Civ. A.

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07-cv-2965, 2008 WL 4761734 at *7-8 (E.D. Pa. Oct. 29, 2008).
Moreover, Plaintiff did not provide sufficient evidence to show
that there was a lack of probable cause to support the more
serious charges, including aggravated assault, simple assault,
reckless endangerment, and possessing instruments of a crime. See
(Doc. No. 174 at 33-4). The issue of fact as to whether probable
cause existed for the lesser charge of making terroristic threats
does not, then, raise the concern that Defendants tacked on more
serious, unfounded charges knowing they would be insulated from
liability by probable cause as to the lesser charge. Cf Johnson,
477 F.3d at 83.
Thus, the Court concludes that the facts at hand do not
permit deviation from Wright’s holding that probable cause to
arrest plaintiff for one offense will dispose of malicious
prosecution claims with respect to all of the charges against
her. See, e.g., Giordano v. Murano-Nix, Civ. A. 12-7034, 2014 WL
62459 at *7 n.11 (E.D. Pa. Jan. 8, 2014); Posey v. Swissvale
Borough, 2:12-cv-955, 2013 WL 989953 at *9-10 (W.D. Pa. Mar. 13,
2013).
Plaintiff failed to produce evidence to raise a genuine
issue of material fact regarding causation and probable cause to
prosecute. Thus, her claims for malicious and retaliatory
prosecution under the First and Fourth Amendments may not
proceed. Because Plaintiff has not shown that the conduct of each

17

individual defendant violated a statutory or constitutional
right, the Court grants defendants’ motion for summary judgment
on the basis of qualified immunity for Defendants Abdul-Malik and
Labbee. See George v. Rehiel, 738 F.3d 562, 572 (3d Cir.
2013)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
B.

PLAINTIFF’S ARGUMENTS
Plaintiff raises numerous issues regarding the Court’s

probable cause analysis. The Court addresses these in turn
below.4
1.

Sufficiency of Investigation at Arrest

Plaintiff contends that the Court erred in determining that
Pellegrino failed to adduce evidence sufficient to suggest that
there was a lack of probable cause to arrest her for aggravated
assault, possessing instruments of a crime, simple assault, and
recklessly endangering another person. Plaintiff argues that the
arresting officer (1) did not perform the obligatory, reasonable
inquiry necessary to determine if probable cause existed to
arrest Pellegrino; (2) included inaccurate information in his
Incident Report; (3) deliberately ignored relevant information
prior to the arrest by not interviewing all possible witnesses,
including Pellegrino, or reviewing available surveillance videos,
even though he had ample time to do so; (4) did not record in his

4

Plaintiff’s Memoranda of Law total over 250 pages. (Doc. Nos. 182,
188). The Court has exerted its best effort to crystallize and address her
many arguments.

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Incident Reports an allegation that Labbee was hit by
Pellegrino’s shoes as Pellegrino tossed them out of the search
room, nor did he investigate this allegation, and thus could not
have used this allegation to form probable cause for the
underlying charges; (5) did not create photo or video evidence of
the TSOs’ allegations of injuries; and (6) failed to use common
sense regarding Pellegrino’s small physical stature when he
credited the TSOs’ allegations of assault.
Contrary to Plaintiff’s assertions, a police officer is “not
required to undertake an exhaustive investigation in order to
validate” his belief that probable cause exists. Merkle v. Upper
Dublin School Dist., 211 F.3d 782, 790 n. 8 (3d Cir. 2000). In
Merkle, the Third Circuit held that a police officer had probable
cause to arrest a teacher for theft based on the credible report
of one eyewitness who stated that the teacher was loading school
materials into her car and had expressed intent to donate them
because they were not needed. Id. at 790. Though Plaintiff
contends that the officer who arrested her had an obligation to
interview all available witnesses, review surveillance video,
assess her physical ability to have committed the alleged crimes,
and corroborate all witness statements with direct evidence, such
a thorough investigation is not required of an officer before he
makes an arrest. See Orsatti v. New Jersey State Police, 71 F.3d
480, 484 (3d Cir. 1995)(“the district court should [] focus[] on

19

the information the officers had available to them, not on
whether the information resulted from exemplary police work.”);
Livingston v. Allegheny County, 400 Fed. Appx. 659, 665 (3d Cir.
2010)(non-precedential)(“the proper inquiry is whether ‘the facts
and circumstances within the arresting officer’s knowledge’ were
sufficient to warrant a reasonable belief that the offense was
committed.”)(emphasis in original); Karkut v. Target Corp., 453
F.Supp. 2d 874, 884 (E.D. Pa. 2006)(“[t]o establish probable
cause for an arrest, the Third Circuit requires . . . obtaining
the credible report of an eyewitness).5 And while independent
exculpatory evidence or substantial evidence of a witness’s
unreliability, if known to the arresting officer, may vitiate the
probable cause established by a witness, Wilson, 212 F.3d at 790,
Plaintiff did not adduce evidence that the arresting officer was
aware of either when he arrested her.
2.

Claims Dismissed at the Motion To Dismiss Stage May Not
Be Reinstated, and New Claims May Not Be Asserted

On February 29, 2012, this Court granted in part and denied
in part Defendants’ Motion to Dismiss. (Doc. No. 78). In its
accompanying Opinion (Doc. No. 77), the Court explained its
reasoning for allowing the following claims to proceed:
Plaintiff’s claims for property damage, false

5

The case cited by Plaintiff, Burns v. Pa. Dept. Of Corr., 642 F.3d 163
(3d Cir. 2011), is inapposite because it concerns the protections of
procedural due process in a prison disciplinary hearing. It does not establish
a general duty for law enforcement officers to review available video footage
in order to establish probable cause to make an arrest.

20

arrest/imprisonment, malicious prosecution and civil conspiracy
under the Federal Tort Claims Act against Defendant United
States; Bivens claims for malicious prosecution and conspiracy to
engage in malicious prosecution under the First and Fourth
Amendments against Defendants TSOs Abdul-Malik and Labbee in
their individual capacities; and Plaintiff’s Claim Against
Defendant U.S. Transportation Security Administration (TSA) for
Failure to Comply with Request for Records Pursuant to the
Freedom of Information Act (FOIA) and the Privacy Act. The Court
dismissed all other potential claims by Plaintiff.
Plaintiff’s current Motion for Reconsideration is not an
appropriate or timely vehicle for reinstating claims that were
dismissed in this Court’s February 29, 2012 Order, nor for
requesting leave to amend her complaint to assert additional
claims. The Court will not consider arguments for reinstating
those claims or for asserting new claims at this juncture.
As to Plaintiff’s FOIA/Privacy Act Claim for unlawful
withholding of records, Defendant TSA produced, pursuant to the
Court’s Order, a Vaughn Index in April 2012 indexing the
documents withheld from Plaintiff and the exemptions justifying
withholding. (Doc. No. 89). The TSA also submitted a Declaration
from Kevin J. Janet, Attorney-Advisor for the Office for Chief
Counsel, explaining which exemptions the TSA believes to justify
withholding of the outstanding records. Id. The Court found

21

Plaintiff’s request to file objections to the Index to be
premature at the time. (Doc. No. 93). Since production of the
Vaughn Index, neither party had addressed the FOIA claim until
Plaintiff’s Motion for Reconsideration. Moreover, Plaintiff’s
Motion does not address Defendant TSA’s legal basis for
withholding the records it has not released, stating that “some
of the exemptions claimed by the TSA FOIA Office make little to
no logical sense that we will not go into at this time because
this issue is quite complicated for 90 separate pages.” (Doc. No.
188 at 123).
In FOIA cases, the agency carries the burden of justifying
the nondisclosure pursuant to an exemption. Coastal States Gas
Corp. v. Department of Energy, 644 F.2d 969, 974 (3d Cir. 1981).
“Affidavits are the means through which a government agency . . .
justifies nondisclosure under each exemption upon which it relied
. . . .” Manchester v. Drug Enforcement Admin., U.S. Dept. Of
Justice, 823 F.Supp. 1259, 1265 (E.D. Pa. 1993)(internal citation
omitted). If the affidavits are detailed, nonconclusory, and
submitted in good faith, their veracity in explaining reasons for
nondisclosure should not be questioned. Id. (internal citations
omitted).
The Court will now grant Plaintiffs6 leave to submit a

6

The Court determined in its February 27, 2012 Order that, if Mr.
Waldman’s name appears alongside Ms. Pellegrino’s on the requests for records
submitted to the TSA, they both have standing to pursue the FOIA claim.
However, only Ms. Pellegrino has standing to pursue a claim under the Privacy

22

Memorandum of Law outlining their position regarding Defendant
TSA’s withholding of records pursuant to the exemptions listed in
5 U.S.C. § 552(b)(5), § 552(b)(2), and § 552(b)(6). See (Doc. No.
89). Defendants are granted leave to reply to Plaintiff’s
Memorandum, after which the Court will make a determination on
Plaintiffs’ claims.7 However, the Court notes that it will
address only Plaintiff’s May 28, 2009 FOIA request,8 which
resulted in the withholding of 90 pages of documents by Defendant
TSA. See (Doc. No. 77 at 38).
To the extent that Plaintiff’s Motion for Reconsideration
requests the Court’s assistance in resolving a FOIA claim
initiated on April 13, 20129 or at any point after May 28, 2009,
however, the Court cannot consider this new claim at the present
juncture.
3.

Other Arguments

Plaintiff’s contention that Defendant TSA intentionally

Act. (Doc. No. 77 at 38 n. 23).
7

The Court may choose to perform an in camera inspection of the
documents at issue, if it deems such an inspection necessary. Manchester, 823
F. Supp. at 1265.
8

The parties agree that, on this date, Plaintiff Nadine Pellegrino
submitted a FOIA request to Defendants TSA. (Doc. No. 188 at 115; Doc. No. 89
at 2 ¶ 4).
9

In her Memorandum, Plaintiff details the chronology of her efforts
surrounding a FOIA request labeled #TS-12-0497. (Doc. No. 188 at 116). It is
not clear to the Court if Plaintiff invites the Court to address this request.
To the extent that she does, the Court notes that it will limit its review and
determination to the 90 pages withheld by Defendant TSA from Plaintiff’s 2009
FOIA request.

23

destroyed “exculpatory and impeachment evidences [sic] . . . to
shield themselves from criminal and civil liabilities and then
tell their crimes victims ‘you can’t prove their [sic] was no
probable cause’” (Doc. No. 188 at 22) also provides the Court
with no basis to rule for Plaintiffs in the present posture. The
issue of the existence and production of any video surveillance
recordings of the July 29, 2006 incident was raised and ruled
upon in Plaintiff’s criminal trial; in addressing the malicious
and retaliatory prosecution claims in the civil trial at hand,
the Court may not speculate on the possible consequences had the
video not been destroyed.
Additionally, Plaintiffs contend that it is “fundamentally
unfair to both airline passengers and the population as a whole”
(Pl. Memorandum, Doc. No. 182-1 at 42) that the arresting
officer’s classification of the TSOs as “other law enforcement
agency officers” in his arrest report contributed to Pellegrino’s
arrest on the charge of aggravated assault,10 yet this Court
later determined that TSOs are immunized from suit under the
Federal Tort Claims Act because they do not fall into the law
enforcement proviso in 28 U.S.C. § 2680(h). See (Doc. No. 174 at
10-18).

10

Aggravated assault is defined in relevant part as “attempts to cause
serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life” or “attempts to cause or . . . causes bodily
injury to . . . A Federal law enforcement official.” 18 Pa. C.S.A. § 2702.

24

The arresting officer’s belief that TSOs are law enforcement
officials within the meaning of Pennsylvania statute 18 Pa.
C.S.A. § 2702 is legally distinct from whether TSOs qualify as
law enforcement officers subject to suit under federal law
pursuant to 28 U.S.C. §2680(h). Assuming that the arresting
officer was mistaken in thinking that the TSOs were federal law
enforcement officials under 18 Pa. C.S.A. § 2702,11 the relevant
inquiry is whether his mistake was reasonable in light of the
circumstances. Maples v. City of Atlantic City, Civ. 06-2200,
2008 WL 2446825 at *3-4 (D.N. J. June 16, 2008)(quoting Illinois
v. Rodriguez, 497 U.S. 177, 186 (1990)(“because many situations
which confront officers in the course of executing their duties
are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly to their
conclusions of probability”); Cambist Films, Inc. v. Duggan, 475
F.2d 887, 889 (3d Cir. 1973)). If the mistake was reasonable, it
will not vitiate the probable cause determination. Maples, 2008
WL 2446825 at *4.
The Court finds that any mistake made by the arresting
officer in believing that the TSOs were law enforcement as
opposed to civilian federal officers was reasonable, given the
Transportation Security Officers’ federal employ, job title, and
11

The Court makes no determination on whether the arresting officer was
correct or mistaken in this belief.

25

search and screening duties at the Philadelphia International
Airport. Additionally, as the Court’s analysis suggested, the law
is not settled as to whether TSA screeners fall under the law
enforcement proviso of the FTCA, and the Third Circuit has not
ruled on the issue. See (Doc. No. 174 at 10-18). It would
certainly be reasonable for the arresting officer not to be
abreast of all developments in this area of the law. Any mistake
on the officer’s part does not create a lack of probable cause
for Pellegrino’s arrest.
C.

PROPERTY DAMAGE CLAIM
Defendants note that Plaintiff has not provided any evidence

to substantiate her allegations of property damage and such
evidentiary deficiency requires dismissal of the claim. In their
Motion for Summary Judgment (Doc. No. 156), Defendants addressed
Plaintiff’s property damage claim in a footnote, arguing that any
property damage “arises from” the underlying intentional torts in
the action, and the claim is thus barred by 28 U.S.C. § 2680(h).
The Court ruled that the property damage claim did not “arise
from” the intentional torts of malicious/retaliatory prosecution.
(Doc. No. 174 at 17-18).
The Defendants did not at summary judgment directly raise
the issue of the sufficiency of Plaintiff’s evidence as a basis
for dismissing Plaintiff’s claims. In their Response to
Plaintiff’s Motion for Reconsideration, Defendants assert that

26

Plaintiff has not produced any evidence of property damage aside
from her own testimony that such damage occurred, and that
“Defendants cannot prepare a meaningful defense at trial if
Plaintiff cannot be trusted to produce the evidence on which she
intends to rely in a timely fashion.” (Doc. No. 192 at 16).
Indeed, the Court notes that in her deposition, Plaintiff
Pellegrino states that she sustained damage to various items,
including a Louis Vuitton snap closure change purse, a fourteen
carat white gold mesh bracelet, and a fourteen carat white gold
mesh Y necklace. (Doc. No. 156, Ex. A, at 165-167). However, when
asked by opposing counsel about the value of the items, she
repeatedly asserts that she is “looking into trying to get a
figure on that,” “it’s in the works,” and “cannot give [] an
exact figure because [she’d] have to have somebody provide a
professional estimation on that.” Id.
Defendants’ argument that they will be prejudiced at trial
due to Plaintiff’s failure to disclose evidence is not a proper
subject for reconsideration of the Court’s previous
determination, for it does not seek to correct a manifest error
of law or fact, rely on new evidence or a change in controlling
law, or seek to correct manifest injustice. See Howard Hess
Dental Laboratories Inc., 602 F.3d at 251. However, the Court’s
ruling does not disturb other remedies, such as a motion in
limine, available to Defendants.

27

Defendants also request the Court to dismiss the entirety of
Plaintiff’s case, including her property damage claim, due to
Plaintiff’s “contumacious disregard for deadlines and orders,” as
well as her continued failure to provide initial disclosures
pursuant to Federal Rule of Civil Procedure 26. (Doc. No. 192 at
13-15). Dismissals with prejudice are drastic sanctions, to be
reserved for extreme cases “where there is a clear record of
delay or contumacious conduct by the plaintiff.” Poulis, 747 F.2d
at 866-67. Though Plaintiff has routinely failed to make timely
filings, the Court will not exercise its discretion to dismiss
her claims on this basis at this time.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that
Plaintiff’s Motion for Reconsideration is DENIED in part.
Defendants’ Motion for Reconsideration is GRANTED in part.
Plaintiff’s Motion for Leave To File is DENIED. An Order follows.