CLIFTON v. BOROUGH OF EDDYSTONE et al
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE J. CURTIS JOYNER ON 10/5/11. 10/7/11 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BOROUGH OF EDDYSTONE and
OFFICER JOSEPH PRETTI,
MEMORANDUM AND ORDER
October 5, 2011
Before the Court is Defendants’ Motion for Summary Judgment
(ECF No. 11).
For the reasons set forth in this Memorandum, the
Defendants’ Motion is GRANTED in part and DENIED in part.
Officer Joseph Pretti is a police officer for the Borough of
Eddystone, Pennsylvania (collectively “Defendants”).
September 15, 2007, shortly before 4:00 pm, Officer Pretti was
patrolling the Eddystone Crossing Shopping Center in his police
cruiser when he noticed several cars parked in the fire lane.
The fire lane runs parallel to a concrete walkway separating the
roadway from the storefronts.
Officer Pretti parked his cruiser
behind a car in which Karen Clifton (“Plaintiff”) was seated in
the back seat.
Plaintiff’s daughter, Kelly, had parked the car
in the fire lane while she and a friend went into a store to
Officer Pretti did not activate his police lights or
sirens and did not get out of his car.
Plaintiff noticed Officer
Pretti’s presence and exited the car, walked up to the door to
the beauty supply store and told her daughter to move the car.
Although the parties dispute what happened next, they agree that
Ms. Clifton uttered “you asshole Eddystone mother-fucking cop.”
Officer Pretti arrested Ms. Clifton for disorderly conduct, 18
Pa. Cons. Stat. Ann. § 5503 (West 2000).
Shortly before 4:00 pm,
Ms. Clifton was handcuffed, placed in the back of Officer
Pretti’s cruiser and transported to the Ridley Township Police
At approximately 7:30 pm, Plaintiff was transported
to the Eddystone Police Department, cited for disorderly conduct
and released from custody.
Plaintiff commenced the present action against Officer
Pretti under 42 U.S.C. § 1983, alleging the following
constitutional violations: First Amendment retaliatory arrest and
prosecution, Fourth Amendment false arrest and imprisonment,
Fourth Amendment excessive force, and Fourth Amendment malicious
Additionally, Plaintiff states a malicious
prosecution claim against Officer Pretti under Pennsylvania
Plaintiff also asserts a § 1983 claim against the
Although Plaintiff does not expressly state a claim under the
Fourteenth Amendment, the Court presumes Plaintiff asserts her First and
Fourth Amendment claims as incorporated under the Fourteenth Amendment. See,
e.g., McDonald v. City of Chicago, 130 S.Ct. 3020, 3034 n.12 (2010).
Likewise, for the sake of simplicity, the Court’s discussion of Plaintiff’s
First and Fourth Amendment rights presumes the application of those rights as
incorporated via the Fourteenth Amendment.
Borough of Eddystone (“Eddystone”) for municipal liability for
First and Fourth Amendment violations.
II. STANDARD OF REVIEW
Upon considering a motion for summary judgment, the Court
shall grant the motion “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).
In making a determination, “inferences to be drawn from the
underlying facts . . . must be viewed in the light most favorable
to the party opposing the motion.”
Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (alteration in
original) (internal quotation marks omitted).
“[T]here is no
issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
party opposing summary judgment “may not rest upon the mere
allegations or denials of the . . . pleading; its response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)
(alteration in original) (internal quotation marks omitted).
Where, as here, the nonmovant does not respond to a motion
for summary judgment, the Court will grant the motion if the
movant is entitled to it as a matter of law.2
See Fed. R. Civ.
The movant, however, is not entitled to summary
judgment simply because the nonmovant did not oppose the motion.
See E.D. Pa. R. Civ. P. 7.1(c); Anchorage Assocs. v. Virgin
Island Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).
Court may treat the facts asserted by Defendant as undisputed.
See Fed. R. Civ. P. 56(e); Anchorage, 922 F.2d at 175.
movant identifies facts to establish no genuine issue of material
fact exists, and the nonmovant has the burden of persuasion, the
nonmovant must identify those facts of record which would
contradict the movant’s facts.
689, 694-95 (3d Cir. 1988).
See Childers v. Joseph, 842 F.2d
“[T]he burden is on the [non-
movant], not the court, to cull the record and affirmatively
identify genuine, material factual issues sufficient to defeat a
motion for summary judgment.”
Longo v. First Nat’l Mortg.
Sources, Civ. No. 07-4372 (MLC), 2009 WL 313334, at *3 (D.N.J.
Feb. 6, 2009) (alteration in original) (internal quotation marks
Plaintiff was granted three time extensions to file an opposition
memorandum to Defendants’ motion for summary judgment. (ECF Nos. 14, 16, 17.)
Upon the Court’s third order extending time, the Court advised Plaintiff there
would be no further extensions granted. Nonetheless, Plaintiff failed to file
an opposition to Defendants’ motion. Seven days after the deadline to file a
response, Plaintiff’s counsel filed a document consisting of what appears to
be an incomplete statement of facts and no legal arguments. Over the next few
months, Plaintiff’s counsel sent letters to the Court describing his
overwhelming workload and promised to submit a opposition memorandum, which
was never received. In light of the fact that Plaintiff’s counsel never filed
a timely and complete memorandum, the Court must consider Defendants’ motion
A. Plaintiff’s § 1983 Claims Against Officer Pretti
Plaintiff alleges several violations of her rights under the
First and Fourth Amendments and seeks relief under 42 U.S.C. §
Officer Pretti raised the affirmative defense of qualified
immunity in his answer to the complaint.
A state official with
qualified immunity has no civil liability for discretionary
conduct so long as he does “not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818
Whether Officer Pretti has qualified immunity is a two-
The Court must determine whether the plaintiff has
shown facts that make out a constitutional rights violation and
if so, whether those rights were “clearly established” at the
time of the incident.
Pearson v. Callahan, 555 U.S. 223, 232
The Court conducts the two-part qualified immunity
inquiry for each of Plaintiff’s claims, in turn.
1. Fourth Amendment Seizure3
Officer Pretti arrested Plaintiff under Pennsylvania’s
disorderly conduct statute, which states in pertinent part:
False arrest and false imprisonment are both injuries arising from the
same Fourth Amendment injury, i.e. an unreasonable seizure. False arrest is a
“species” of false imprisonment and they can both be considered one tort. See
Wallace v. Kato, 549 U.S. 384, 388-89 (2007). In this case, Plaintiff’s
arrest and subsequent three-and-a-half-hour confinement are one ongoing
seizure. The Court hence analyzes Plaintiff’s claims of false arrest and
false imprisonment together.
A person is guilty of disorderly conduct if, with intent
to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture;
(4) creates a hazardous or physically offensive condition
by any act which serves no legitimate purpose of the
18 Pa. Cons. Stat. Ann. § 5503(a).
According to Plaintiff’s
recollection of the incident, she stepped out of her daughter’s
car, which was parked in the fire lane, crossed the adjacent
walkway, opened the door to a beauty supply store, and from the
doorway informed her daughter that she needed to move her car out
of the fire lane.
(Def.’s Mot. Ex. A, at 85-87.)
As Ms. Clifton
walked back to the car, she alleges that she uttered “you asshole
Eddystone mother fucking cop” under her breath at the “slightest
Id. at 92, 94.
Plaintiff stated that although the
parking lot was full of cars, no one was present at or near the
area where she made the statement and Officer Pretti was still
seated in his car.
Id. at 131.
Officer Pretti’s recollection
He recalls the walkway and area around Ms.
Clifton being crowded with pedestrians.
(Def.’s Mot. Ex. C, at
Officer Pretti alleges that Ms. Clifton was “cursing at
[him] at the top of her lungs” and caused several passers-by to
walk into the street to avoid her.
Id. at 20-21.
Officer Pretti, he arrested Ms. Clifton after she refused to
comply with his orders to cease and desist.
From the time
of her arrest to the time of her release, Ms. Clifton was in
custody for approximately three-and-a-half hours.
Ex. A, at 135.)
An arrest is lawful under the Fourth Amendment only if it is
supported by probable cause.
F.3d 199, 211 (3d Cir. 2003).
See, e.g., Johnson v. Campbell, 332
The dispositive issue is not
whether Plaintiff actually committed the offense but whether
Officer Pretti had probable cause to believe Plaintiff committed
the offense at the time he arrested her.
See Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988); see also Michigan
v. DeFillippo, 443 U.S. 31, 36 (1979) (“the mere fact the suspect
is later acquitted of the offense for which he is arrested is
Probable cause is a question of fact for the jury
to decide, Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d
Cir. 1995), but Defendants contend that viewing all the evidence
in favor of Plaintiff, probable cause existed as a matter of law.
Probable cause is present where an officer has a sufficient
basis to make a “practical, common sense” decision that a “fair
probability” of criminal activity exists.
U.S. 213, 238 (1983).
Illinois v. Gates, 462
The inquiry is whether “facts and
circumstances within the officer's knowledge  are sufficient to
warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.”
DeFillippo, 443 U.S. at 37.
If the arrest was effected without
probable cause, it would violate Plaintiff’s Fourth Amendment
protection against unreasonable seizures.
The factual record is unclear as to which part of the
statute Plaintiff’s arrest is based.
Defendants argue in their
motion probable cause exists under the obscene language
provision, 18 Pa. Cons. Stat. Ann. § 5503(a)(3).
On the other hand, Officer Pretti’s citation designates
the basis for arrest as both obscene language and creating a
“hazardous or physically offensive condition,” § 5503(a)(3), (4).
(Def.’s Mot. Ex. D.)
The magistrate adjudged Plaintiff not
guilty, citing only the “hazardous or physically offensive
condition” provision, § 5503(a)(4).
(Compl. Ex. C.)
of which part of the statute is alleged to be violated, Plaintiff
cannot prevail on her claim if Officer Pretti had probable cause
to arrest her for any offense at the time.
See Reedy v. Evanson,
615 F.3d 197, 211 (3d Cir. 2010) (“Probable cause need only exist
as to [one of the] offense[s] that could be charged under the
circumstances.” (alterations in original) (internal quotation
marks omitted)), cert. denied, 131 S. Ct 1571 (2011).
the Court must consider whether probable cause existed to arrest
Plaintiff for violating any provision of the disorderly conduct
a. Obscene Language
For the purposes of defining obscene language, the
Pennsylvania courts adopted the test for obscenity articulated by
the Supreme Court in Miller v. California, 413 U.S. 15 (1973).
Commonwealth v. Kelly, 758 A.2d 1284, 1286 (Pa. Super. Ct. 2000).
The Miller test delineates three requirements:
(a) whether the average person, applying contemporary
community standards would find that the work, taken as a
whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law; and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
413 U.S. at 24 (internal quotation marks and citations
Plaintiff’s statement, although vulgar and
coarse, is not obscene.
In this context, it reasonably
appears that Plaintiff was attempting to ridicule, offend
and insult Officer Pretti but her statement did not appeal
to prurient interests, that is, it is not sexual in nature.
See Tate v. W. Norriton Twp., 545 F. Supp. 2d 480, 487 (E.D.
Pa. 2008) (holding the statement “she needs f___ing help!”
and “what, the f-k word?” were “emphatic, coarse, and
disrespectful” but not obscene); Brockway v. Shepherd, 942
F. Supp. 1012, 1016 (M.D. Pa. 1996) (“using a base term for
sex does not change the disrespectful, offensive
communication into one that appeals to the prurient
The most analogous case to the circumstances at hand
occurred in Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super.
A highway construction worker approached a
motorist whose car was idling next to the work area.
When the worker inquired about the motorist’s
intentions, the motorist retorted, “[f]uck you, asshole” and
gestured by extending his middle finger.
ruled that the motorist’s expressions were not obscene but
instead “angry words and an angry gesture having nothing to
do with sex.”
Id. at 1288.
Plaintiff, ostensibly taking
issue with Officers Pretti’s decision to park behind her
daughter’s vehicle, stated similar vulgarities.
the language she chose to use was not identical to the
motorist’s words in Kelly, the differences are too
insignificant to qualify Plaintiff’s language as obscenity.
Therefore, Officer Pretti did not have probable cause to
arrest Plaintiff for using obscene language.
b. Hazardous or Physically Offensive Conditions
Plaintiff’s disorderly conduct citation indicates her arrest
was also based on creating a “hazardous or physically offensive
condition” under § 5503(a)(4).
A hazardous condition is one that
“involves danger or risk,” particularly situations raising the
possibility of injuries from public disorder.
Williams, 574 A.2d 1161, 1164 (Pa. Super. Ct. 1990).
Court must assume the facts most favorable to the plaintiff, the
Court cannot find, as a matter of law, that Ms. Clifton created a
Whispering vulgarities while walking alone
on a walkway, while Officer Pretti sat in his car, does not
create a danger or risk of injury from public disorder.
the Court conclude Plaintiff created a physically offensive
There was no affront to the physical senses of the
public or an invasion of the physical privacy of another.
id. (“A defendant may create such a [physically offensive]
condition if she sets off a ‘stink bomb’, strews rotting garbage
in public places, or shines blinding lights in the eyes of
A reasonable jury could find that Officer Pretti did
not have probable cause to arrest Plaintiff under § 5503(a)(4).
c. Fighting Words
The “fighting words” provision of Pennsylvania’s disorderly
conduct statute sanctions an individual who “engages in fighting
or threatening, or in violent or tumultuous behavior.”
Cons. Stat. Ann. § 5503(a)(1).
Fighting words “by their very
utterance inflict injury or tend to incite an immediate breach of
Victory Outreach Ctr. v. Melso, 313 F. Supp. 2d 481, 491
(E.D. Pa. 2004) (quoting Commonwealth v. Hock, 728 A.2d 943, 946
n.3 (Pa. 1999)).
“‘[P]rofane’ words alone, unaccompanied by any
evidence of violent arousal, are not ‘fighting words’ and are
therefore protected speech.”
Under Plaintiff’s account of
the incident, her coarse remarks were barely audible and spoken
while she walked back to her daughter’s car.
Plaintiff alleges Officer Pretti was still seated in his car and
no one else was around to hear her words.
circumstances, Plaintiff did not utter fighting words.
728 A.2d at 416 (concluding that “F___ you, a_______” were not
fighting words when uttered in a normal tone of voice while
walking away from a police officer).
A genuine issue of material
fact exists as to whether Officer Pretti had probable cause to
arrest Plaintiff for using fighting words.
d. Qualified Immunity
Even if Officer Pretti did not have probable cause to arrest
Plaintiff, he may be protected by qualified immunity.
found that a reasonable jury could conclude Plaintiff’s Fourth
Amendment rights were violated by her arrest, the Court must now
consider whether her rights were “clearly established” at the
time of the incident.
Pearson, 555 U.S. at 232.
to survive a motion for summary judgment, she bears the initial
burden to prove Defendants violated some clearly established
See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.
A right is clearly established when “a reasonable
official would understand that what he is doing violates that
McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001).
“The plaintiff need not show that the very action in question was
previously held unlawful, but needs to show that in light of
preexisting law the unlawfulness was apparent.”
Assuming the facts most favorable to Plaintiff, a reasonable
officer would understand that arresting Plaintiff would violate
clearly established law.
As the Court has already explained, the
relevant precedent makes clear that a citizen cannot be lawfully
arrested for disorderly conduct under the circumstances alleged
See supra Parts III.A.1.a-.c.
Whether “words or
acts rise to the level of disorderly conduct hinges upon whether
they cause or unjustifiably risk a public disturbance.”
728 A.2d at 946.
Plaintiff describes a situation in which she
whispered vulgar and insulting remarks concerning Officer Pretti
but no one but Officer Pretti was around to hear them.
Plaintiff admits she was angry, she alleges no physical
intimations of hostility and contends Officer Pretti was still
seated in his police cruiser.
These facts are inapposite to the
cases finding defendants culpable of disorderly conduct, all of
which include some risk of public turmoil.
Witmer, 526 F.3d 104 (3d Cir. 2008).
See, e.g., Egolf v.
To the contrary, the
analogous case law indicates Plaintiff’s rights were clearly
See Tate v. W. Norriton Twp., 545 F. Supp. 2d 480
(E.D. Pa. 2008); Victory Outreach Ctr. v. Melso, 313 F. Supp. 2d
481 (E.D. Pa. 2004); Brockway v. Shepherd, 942 F. Supp. 1012
(M.D. Pa. 1996); Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999);
Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. Ct. 2000);
Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa. Super. Ct.
Thus, it is clear there is “sufficient precedent at the
time of action, factually similar to the plaintiff’s allegations,
to put defendant on notice that his or her conduct is
McLaughlin, 271 F.3d at 572.
The cases cited by Defendants do not squarely address the
right at issue, that is, the right of Plaintiff to utter
disparaging remarks about a police officer absent the risk of
Defendants rely on three cases for substantive
support: L. v. Boyertown Area School District, Civ. No. 08-5194,
2009 WL 1911621 (E.D. Pa. July 1, 2009), Shotko v. City of
Wilkes-Barre, No. 3:08cv626, 2009 WL 1324035 (M.D. Pa. May 11,
2009), and Cherry v. Garner, No. Civ. A. 03-CV-01696, 2004 WL
3019241 (E.D. Pa. Dec. 30, 2004).
First, in L., the court found probable cause where a
tempestuous sixth grader called his disability aide a “fucking
bitch” in the lunchroom while he was eating with his friends.
2009 WL 1911621, at *2.
The distinguishing factor in L. though,
was that the student uttered his invective in front of a crowd of
Next, the court in Shotko found probable cause to arrest a
political protester for disorderly conduct.
2009 WL 1324035, at
While walking on the sidewalk during a holiday parade, a
police officer ordered the plaintiff to stop walking.
Id. at *1.
Shotko rebuffed the officer and demanded justification for the
Id. at *4.
The plaintiff then told the police to “fuck off.”
Again, the distinctive factor in Shotko was that the
statement was spoken amongst a crowd of onlookers.
Shotko rebuked a police officer who issued a direct order, thus
raising the risk of a public disturbance.
Finally, in Cherry, a hostile parent confronted a police
officer in a schoolyard, pointed her finger at the officer and
The court did not analyze probable cause in detail; the discussion of
probable cause is cabined to a single footnote. Defendants quote the
propositions from that footnote: “Profane language aimed at public officials
has been the basis for writing disorderly conduct citations in many instances”
and “it is clear from these cases that the issuance of a citation for use of
such profane language is supported by probable cause.” L., 2009 WL 1911621,
at *4 n.6. Although the Court agrees with the former proposition in general,
the court in L. was considering a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) and found ample support to grant the motion on other grounds. Id.
at *2-4. It is not entirely clear that the court in L. had the opportunity to
“analyze the right with specificity” as courts have done when considering
qualified immunity on a summary judgment motion. Doe v. Groody, 361 F.3d 232,
243 (3d Cir. 2004). As primary support for the latter proposition in footnote
6, the court in L. cited Commonwealth v. Hock, 696 A.2d 225 (Pa. Super. Ct.
1997) but this opinion was subsequently overruled by the Pennsylvania Supreme
Court. See Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999). The only other case
cited in support of the proposition is Commonwealth v. Pringle, 450 A.2d 103
(Pa. Super. Ct. 1982), a nearly 30 year old case that has been repeatedly
called into doubt. See Commonwealth v. Bryner, 652 A.2d 909 (Pa. Super. Ct.
1995); United States v. McDermott, 971 F. Supp. 939 (E.D. Pa. 1997); see also
Commonwealth v. Fenton, 750 A.2d 863, 869-72 (Pa. Super. Ct. 2000) (Brosky, J.
concurring) (discussing Fenton line of cases and their divergence from
shouted: “Motherfucker, you are going to have to leave me alone!”
2004 WL 3019241, at *1-2.
The court upheld a finding of probable
cause, due in part to the presence of small children at the scene
of the altercation.
Id. at *9.
Thus the circumstances in Cherry
contrast with the circumstances alleged by Plaintiff.
Although all three cases cited by Defendants are similar to
the case at hand in one respect--they all involve plaintiffs who
used similarly vulgar words to disparage public officials--they
differ from the facts alleged by Plaintiff.
language in L., Shotko, and Cherry was coupled with a risk of
public disturbance that is lacking in Plaintiff’s case.
such as Hock, 728 A.2d 943, and Kelly, 758 A.2d 1284, clearly
establish that probable cause does not exist to arrest an
individual for using language, no matter how boarish and vulgar,
in the presence of a police officer where there is no risk of
Therefore, Officer Pretti is not entitled to
qualified immunity and a jury could reasonably find that
Plaintiff’s arrest violated her Fourth Amendment protections
against unreasonable seizure.
Summary judgment is denied to this
To the extent the parties distinguish between false arrest and false
imprisonment, summary judgment is denied to both claims. See Groman v. Twp.
of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (“where the police lack probable
cause to make an arrest, the arrestee has a claim under § 1983 for false
imprisonment based on a detention pursuant to that arrest.” (citing Thomas v.
Kipperman, 846 F.2d 1009, 1011 (5th Cir. 1988))).
2. First Amendment Retaliation
Plaintiff contends that Officer Pretti arrested and
prosecuted her in retaliation for her expression of
constitutionally protected speech.
A First Amendment retaliation
claim requires Plaintiff to allege three elements: (1)
constitutionally protected conduct, (2) retaliatory action
sufficient to deter a person of ordinary firmness from exercising
his or her constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory
Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.
2006) (quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d
a. Constitutionally Protected Conduct
As the Court ruled above, Plaintiff’s expression, under the
circumstances she alleges, could not be a valid basis for her
“[E]xcept for certain narrow categories deemed unworthy
of full First Amendment protection-such as obscenity, ‘fighting
words’ and libel-all speech is protected by the First Amendment.”
Eichenlaub v. Township of Indiana, 385 F.3d 274, 282-83 (3d Cir.
2004) (citing R.A.V. v. St. Paul, 505 U.S. 377, 382-90 (1992)).
Under the facts most favorable to Plaintiff, and for the reasons
discussed above, Ms. Clifton’s statement was neither obscenity
nor “fighting words,” and Defendants have not suggested it was
Therefore, a reasonable jury could find that Ms.
Clifton’s statement to Officer Pretti was speech protected by the
See City of Houston v. Hill, 482 U.S. 451, 461
(1987) (holding that the First Amendment “protects a significant
amount of verbal criticism and challenge directed at police
b. Retaliatory Action
Plaintiff must allege the government responded with
retaliatory action sufficient to deter a person of ordinary
firmness from exercising his or her constitutional rights.
Plaintiff claims she was arrested by Officer Pretti for her
vulgar remarks about him. Plaintiff was removed from her vehicle,
handcuffed, and taken to the local jail for several hours.
was eventually released and given a citation for disorderly
Plaintiff had to subsequently appear in court for
trial, where she was found not guilty.
The effect of the
retaliatory conduct “need not be great” to be actionable “but it
must be more than de minimus.”
McKee v. Hart 436 F.3d 165,
170 (3d Cir. 2006) (internal quotation marks omitted).
Plaintiff’s arrest, detention and prosecution exceeds this low
See, e.g., McCoy v. Edwards, No. 3:06-CV-1142, 2009
WL 1794749, at *9 (M.D. Pa. June 23, 2009).
Plaintiff has established a causal link between her speech
and Officer Pretti’s action.
Plaintiff alleges she was arrested
moments after making her statement.
Plaintiff contends that
after uttering her remark, she proceeded back to her daughter’s
car, sat down in the back seat, and closed the door.
Mot. Ex. A, at 97.)
Next, Plaintiff states she saw her daughter,
Kelly, and her daughter’s friend sit down in the front seats of
the car and close the doors.
Id. at 98.
Then Plaintiff alleges
Officer Pretti removed her from the car and arrested her.
In Estate of Smith v. Marasco, 318 F.3d 497, 512-13 (3d
Cir. 2003), the court found that the passage of up to two days
between the protected conduct and retaliatory act could be
“unusually suggestive” of a causal link.
Plaintiff was arrested
only moments later--within seconds or minutes--and thus a jury
could reasonably infer her arrest was caused by her remarks.
Furthermore, although Ms. Clifton and Officer Pretti have
substantially different recollections of the event, they both
agree Ms. Clifton’s arrest was caused by her conduct and speech
while standing outside of the shopping mall.
established the requisite elements to sustain her First Amendment
One component of Plaintiff’s First Amendment claim is retaliatory
prosecution, which carries the specific requirement that Plaintiff plead and
prove an absence of probable cause. Hartman v. Moore, 547 U.S. 250, 265-66
(2006). As the Court held in its Fourth Amendment analysis, see supra Part
d. Qualified Immunity
The analysis of the qualified immunity doctrine for
Plaintiff’s First Amendment claim largely overlaps with the
Court’s analysis of Plaintiff’s Fourth Amendment false arrest
claim. As the Court thoroughly explained in Part III.A.1 above, a
reasonable jury could find Plaintiff’s arrest was not supported
by probable cause. Furthermore, her speech, as alleged by
Plaintiff, was protected under the First Amendment and does not
qualify under any of the recognized exceptions to protected
speech. The law is clearly established that an individual cannot
be arrested in retaliation for her protected speech.
Moore v. Valder, 65 F.3d 189, 196 (D.C. Cir. 1995); Losch v.
Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984);
Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504, 512
Defendants’ Motion for Summary Judgment is denied
as to Plaintiff’s First Amendment claim against Officer Pretty.
3. Fourth Amendment Excessive Force
Plaintiff’s excessive force claim is based on two different
courses of conduct.
First, the force by which Officer Pretti
apprehended and detained Plaintiff is challenged as excessive.
III.A.1, a reasonable jury could find that Plaintiff was arrested without
Second, Plaintiff alleges Officer Pretti used excessive force to
tighten handcuffs around her wrists.
a. Force Used to Place Plaintiff in Police Custody
Plaintiff alleges she was the victim of excessive force when
Officer Pretti arrested her.
Plaintiff claims that while she was
seated in rear seat of her daughter Kelly’s car, Officer Pretti
abruptly opened the door, grabbed Plaintiff by the left wrist and
“yanked” her out of the car “with very extreme force.”
Mot. Ex. A., at 99-100).
Plaintiff asserts she was then pushed
against the trunk of Kelly’s car onto her chest and stomach.
Officer Pretti then allegedly “yanked” Plaintiffs arms
behind her back and “slammed” handcuffs around her wrists.
Plaintiff was then walked over to Officer Pretti’s cruiser.
Plaintiff was bent over, about to sit down in the rear seat,
Plaintiff states Officer Pretti pushed her left shoulder, causing
her to hit her head on the car’s roof.
Id. at 110.
Pretti alleges he arrested Ms. Clifton while she was standing on
the walkway and repeatedly shouting vulgar insults at him.
(Def.’s Mot. Ex. C, at 42, 45.)
According to Officer Pretti, he
arrested Ms. Clifton only after she refused to comply with his
order to stop screaming.
Id. at 20-21.
Officer Pretti reports
that he placed handcuffs on Ms. Clifton, walked her back to his
police cruiser, and helped her get seated in the back seat.
An arrest violates the Fourth Amendment when effectuated
with excessive force.
See Graham v. Connor, 490 U.S. 386, 394
The inquiry is whether “the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
Id. at 397 (citing Scott v. United States, 436 U.S.
128, 137-39 (1978)).
Deciding whether the force was reasonable
requires a balancing of interests: “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.”
(internal quotation marks omitted).
Id. at 396
The Court must afford some
allowance for police officers who make “split-second judgments”
in “tense, uncertain, and rapidly evolving” circumstances.
Some of the factors to be considered are the severity
of the crime at issue, the immediate threat of harm to the
officers and others, and the suspect’s attempts to resist or
escape the arrest.
Id. at 396.
The Third Circuit has delineated
additional factors, such as the risk a suspect is violent or
dangerous, the duration of the use of force, whether the force
was used to effectuate the arrest, the possibility the suspect is
armed, and the number of people the officer must contend with at
Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004)
(citing Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
The reasonableness of the force used to arrest Plaintiff is
a question of fact.
See Marasco, 318 F.3d at 515-16.
possibility that Plaintiff may have been arrested without
probable cause, alone, does not constitute excessive force.
Snell v. City of York, 564 F.3d 659, 672-73 (3d Cir. 2009)
(rejecting efforts to “bootstrap” excessive force claims and
probable cause claims).
In light of the facts most favorable to
the plaintiff, a reasonable jury could find that Officer Pretti
used excessive force.
Plaintiff was accused of the relatively
minor offense of disorderly conduct, she did not appear to pose
an immediate threat of harm while seated in a car, and there are
no allegations she resisted or sought to escape arrest.
Furthermore, Plaintiff’s behavior did not suggest she was violent
or dangerous, nor that she was armed.
On the other hand, Officer
Pretti appeared to be using force primarily to effectuate the
arrest, although he allegedly pushed Plaintiff once more as she
entered the police cruiser.
short: about two minutes.
The duration of the use of force was
(Def.’s Mot. Ex. A., at 105.)
the circumstances, a reasonable jury could find “yanking”
Plaintiff out of the car and “slamming” her against the trunk of
the car were excessive.
Additionally, the allegation that
Officer Pretti pushed Ms. Clifton while she was handcuffed and
obediently getting into the police cruiser could be found to be a
gratuitous and flagrant use of force.
Next, the Court must consider the legal question of
Plaintiff can only prevail on her excessive
force claim if a reasonable officer would have known his conduct
violated the Fourth Amendment in these circumstances.
361 F.3d at 777.
“The question is what the officer reasonably
understood his powers and responsibilities to be, when he acted,
under clearly established standards.”
194, 208 (2001).
Saucier v. Katz, 533 U.S.
Qualified immunity operates to “protect
officers from the sometimes hazy border between excessive and
533 U.S. at 206 (internal quotation marks
The circumstances portrayed by Plaintiff placed Officer
Pretti in the kind of hazy predicament meant to invoke the
protections of qualified immunity.
Although the case law is
replete with examples probing the boundaries of excessive force,
there is no bright line between acceptable and excessive use of
Making an arrest “necessarily carries with it the right
to use some degree of physical coercion or threat thereof to
Graham, 490 U.S. at 396.
Not every push or shove is
excessive force, id. at 396, and even a “gratuitously violent
shove” can be tolerable, Saucier, 533 U.S. at 208.
Officer Pretti’s actions can reasonably be considered gratuitous
and one could question the necessity of the force used to extract
Plaintiff from the car and place her in the police cruiser.
However, the law does not clearly establish that the force
Officer Pretti used was unreasonable, nor can the Court conclude
that a reasonable officer would know such force violated the
The Court is not prepared to go to the extreme
of parsing how hard a “yank” or how heavy a “slam” must be,
absent serious injury, before an officer is liable for using
Even if Officer Pretti made a mistake as to how
much force was required, it was a reasonable mistake and he is
entitled to qualified immunity.
See Saucier, 533 U.S. at 205.
The alleged force used against Plaintiff pales in comparison to
cases in which courts found the police used excessive force.
See, e.g., Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006)
(force was excessive where four officers jumped on a cooperative
suspect, sprayed him with mace and pointed firearms at his head);
Rivas v. City of Passaic, 365 F.3d 181, 198-200 (3d Cir. 2004)
(finding excessive force where officers beat and suffocated a
suspect who was in the midst of a seizure); Solomon v. Auburn
Hills Police Dep’t, 389 F.3d 167, 174-75 (6th Cir. 2004) (police
shoved unresisting victim into a display case and fractured her
arm by yanking it behind her back.)
Officer Pretti is entitled
to qualified immunity for the force he used to apprehend and
b. Tightening of Handcuffs
Plaintiff alleges that Officer Pretti applied handcuffs to
her wrists so tightly that it amounted to excessive force.
Plaintiff states she was removed from her daughter Kelly’s car
and within two minutes, she was handcuffed and seated in Officer
Pretti’s police cruiser.
(Def.’s Mot. Ex. A, at 105.)
Clifton claims she waited in the police cruiser for an additional
five minutes, in handcuffs, while Officer Pretti gave Kelly a
Id. at 116.
Ms. Clifton was then transported
to the Ridley Township Police Station, which took approximately
three to four minutes.
Id. at 118.
Plaintiff was placed in a
holding cell and only after Officer Pretti left the station,
Plaintiff mentioned for the first time that the handcuffs were
Id. at 121-24.
Excessively tight handcuffs have been found to constitute
excessive force in some cases.
See Kopec, 361 F.3d at 777-78.
Furthermore, the right to be free from the use of excessive force
in the course of handcuffing is clearly established and is not
defeated by qualified immunity.
subject to excessive force.
Id. at 778.
Plaintiff was not
In Kopec v. Tate, the plaintiff was
handcuffed and immediately lost feeling in his right hand.
F.3d at 774.
He fell to the ground and begged the officer to
loosen the handcuffs.
After ten minutes, as the plaintiff
groaned in excruciating pain, the officer finally loosened the
As a result the plaintiff suffered nerve damage
that required several surgeries.
Under these extreme
circumstances, the Third Circuit found the plaintiff was the
victim of excessive force.
See id. at 777.
The Third Circuit
cautioned that the opinion “should not be overread as we do not
intend to open the floodgates to a torrent of handcuff claims,”
and therefore the Court construes Kopec narrowly.
Clifton does not allege her pain was so obvious as to be visibly
apparent, nor does she allege she ever told Officer Pretti the
handcuffs were too tight around her wrists.
Clifton does not allege injuries as severe as those in Kopec.
Ms. Clifton faced a situation analogous to the circumstances
in Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005).
In Gilles, the
plaintiff was arrested for disorderly conduct and remained in
handcuffs for three or four hours.
Id. at 202.
time, the plaintiff complained about the pain to several police
officers but he otherwise displayed no “obvious visible
indicators of  pain.”
Id. at 208.
The plaintiff sought a
medical evaluation but received no treatment.
held that the plaintiff was not subject to excessive force.
The record is unclear how long Ms. Clifton was in handcuffs but
it could have been as long as three or four hours.
admits that she never told Officer Pretti the handcuffs were too
tight, although she allegedly told officers working at the Ridley
Township Police Station.
Additionally, Plaintiff does not allege
she exhibited “obvious visible indicators of pain.”
circumstances, Gilles is controlling and the Court must conclude
that Officer Pretti did not use excessive force when he
Defendant Officer Pretti is granted
summary judgment against Plaintiff’s Fourth Amendment claim of
4. Fourth Amendment Malicious Prosecution
Plaintiff alleges a malicious prosecution claim against
A malicious prosecution claim under the Fourth
Amendment has five requirements: (1) the defendant initiated a
criminal proceeding; (2) the criminal proceeding ended in the
plaintiff’s favor; (3) the defendant initiated the proceeding
without probable cause; (4) the defendant acted maliciously or
for a purpose other than bringing Plaintiff to justice; and (5)
the plaintiff suffered a deprivation of liberty consistent with
the concept of seizure as a consequence of a legal proceeding.
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (citing Marasco,
318 F.3d at 521).
“A claim for false arrest, unlike a claim for
malicious prosecution, covers damages only for the time of
detention until the issuance of process or arraignment, and not
Id. (quoting Montgomery v. De Simone, 159 F.3d 120, 126
(3d Cir. 1998)); accord Heck v. Humphrey, 512 U.S. 477, 484
Therefore, Plaintiff’s malicious prosecution claim
covers damages for the time following the issuance of process.
In this case, legal proceedings began when Officer Pretti issued
Ms. Clifton a citation for disorderly conduct.
restrictions, such as posting bail or submitting to travel
restrictions, may amount to a deprivation of liberty sufficient
to meet the fifth element of malicious prosecution.
Gallo v. City of Philadelphia, 161 F.3d 217, 222-23 (3d Cir.
Although Plaintiff was certainly seized prior to the
issuance of process, she was not seized any time thereafter.
September 15, 2007, Plaintiff was detained at the Ridley Township
police station following her arrest.
Later that evening,
Plaintiff was issued a citation and released from custody.
Plaintiff appeared in court on October 9, 2007 for trial and was
adjudicated not guilty on November 5, 2007.
(Compl. ¶ 22.)
only seizure occurred on September 15, 2007, prior to her receipt
of a citation.
There is no evidence in the record that Plaintiff
was seized following the issuance of the citation.
attendance at trial, by itself, does not meet the deprivation of
See Bingaman v. Bingaman, No. 4:07-CV-2352,
2009 WL 2424641, at *4 (M.D. Pa. Aug. 5, 2009) (“required
attendance at pretrial proceedings and her eventual bench trial
is not sufficient to establish the type of deprivation required
to state a constitutional malicious prosecution claim.”); Kokinda
v. Breiner, 557 F. Supp. 2d 581, 591-92 (M.D. Pa. 2008) (postarrest seizure for several hours, without more, was insufficient
deprivation of liberty); Shepherd v. Ambrosino, Civ. No. 07-4968
(MLC), 2007 WL 4233030, at *2 (D.N.J. Nov. 29, 2007); Bristow v.
Clevenger, 80 F. Supp. 2d 421, 429-30 (M.D. Pa. 2000).
judgment is granted for Officer Pretti against Plaintiff’s Fourth
Amendment malicious prosecution claim.
B. Plaintiff’s § 1983 Claims Against the Borough of Eddystone
Plaintiff asserts a claim of municipal liability against the
Borough of Eddystone.
Eddystone is liable, according to
Plaintiff, for Officer Pretti’s violations of Plaintiff’s First
and Fourth Amendment rights by: (i) failing to adequately train
and supervise Officer Pretti and (ii) ratifying an Eddystone
Police Department custom or practice of illegally arresting
(See Compl. ¶ 28.)
Plaintiff has failed to allege
facts sufficient to defeat a motion for summary judgment.
In a § 1983 suit against a local governing body, the
governing body may only be liable if the allegedly
unconstitutional action “implements or executes a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.”
Soc. Servs., 436 U.S. 658, 690 (1978).
Monell v. Dep’t of
Such actions can take two
forms: an official policy or a custom or usage.
Id. at 691.
“Although not authorized by written law,  practices of state
officials could well be so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.”
Inadequate police training--or the absence
of training altogether--may be the basis for a § 1983 suit if the
deficient training amounts to “deliberate indifference” to the
rights of the person aggrieved.
489 U.S. 378, 388 (1989).
See City of Canton v. Harris,
The municipal policy must be the
“moving force [behind] the constitutional violation.”
Id. at 389
(alteration in original) (quoting Polk Cnty. v. Dodson, 454 U.S.
312, 326 (1981)).
To attach liability, the failure to train must
be a “deliberate” and “conscious” choice by the municipality.
Plaintiff has not alleged any facts that suggest
Eddystone showed a deliberate indifference to the First and
Fourth Amendment rights of its citizens.
No facts in the record
indicate Eddystone’s officer training program was inadequate or
that such training was the “moving force” behind Plaintiff’s
alleged constitutional injury.
No facts support a causal
relationship whatsoever between Plaintiff’s alleged injury and
the actions of Eddystone policymakers.
Plaintiff has alleged a single incident of First and Fourth
Amendment violations but otherwise points to no other incidents.
Although most cases involve a pattern of violations, a narrow
exception exists where the need for more training was “so
obvious” and the inadequacy was “so likely” to result in
violations of constitutional rights, that policymakers “can
reasonably be said to have been deliberately indifferent to the
Harris, 489 U.S. at 390.
The Supreme Court hypothesized,
for example, that equipping officers with firearms and not
training them on the constitutional limits of deadly force would
demonstrate an obvious need for adequate training.
Id. at 390
n.10; see also Berg v. County of Allegheny, 219 F.3d 261, 275-76
(3d Cir. 2000) (finding deliberate indifference where a county
had no protective measures to prevent erroneous warrants from
The Court sees no reason to find that Plaintiff
has met this high burden; Plaintiff has given the Court no
indication of Eddystone’s alleged training deficiencies.
Plaintiff has failed to prove the essential elements of its claim
and therefore cannot survive a motion for summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff also alleges Eddystone acquiesced to or ratified a
police custom of permitting unconstitutional arrests.
has the burden to show that “an official who has the power to
make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
Plaintiff has not identified an official with
policymaking power, an affirmative proclamation of a policy, nor
evidence of acquiescence in a custom.
Furthermore, Plaintiff has
not met her burden to prove a municipal practice was the
proximate cause of her injuries.
unsubstantiated claim cannot survive summary judgment.
Watson v. Abington Twp., 478 F.3d 144, 156-57 (3d Cir. 2007).
Defendant Eddystone is entitled to summary judgment on all claims
of municipal liability.
C. Pennsylvania Malicious Prosecution
Plaintiff accuses Officer Pretti of malicious prosecution
under Pennsylvania common law.
The law has four elements: (1)
the institution of legal proceedings against the plaintiff, (2)
without probable cause, (3) with malice, and (4) the proceedings
terminated in favor of the plaintiff.
See Manley v. Fitzgerald,
997 A.2d 1235, 1241 (Pa. Commw. Ct. 2010).
unequivocally reflects--and the parties agree--that Officer
Pretti instituted legal proceedings against Plaintiff when he
issued her a citation for disorderly conduct.
Next, as the Court
has already found, a genuine issue of material fact exists as to
whether Officer Pretti had probable cause to arrest Ms. Clifton.7
“Malice has been stated to include ill-will in the sense of
spite, the use of a prosecution for an extraneous, improper
purpose, or the reckless and oppressive disregard of the
Bristow v. Clevenger, 80 F. Supp. 2d 421,
435 (M.D. Pa. 2000) (quoting Lee v. Mihalich, 847 F.2d 66, 70 (3d
Malice may be “inferred from the absence of
In light of the facts favorable to
Plaintiff, she was arrested without probable cause, and so a jury
could find that Officer Pretti acted with malice.
record indicates that the legal proceedings terminated in
Plaintiff’s favor; a court found her not guilty of disorderly
A reasonable jury could conclude that Officer Pretti
maliciously prosecuted Ms. Clifton.
Officer Pretti raises the defense of official immunity under
Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa.
Cons. Stat. Ann. §§ 8541-64.
The statute reads, in pertinent
In contrast to the Court’s § 1983 analysis where probable cause is a
question of fact, under Pennsylvania law, probable cause is a question of law
for the court to decide. See Bristow, 80 F. Supp. 2d at 433-34 (citing
Simpson v. Montgomery Ward & Co., 46 A.2d 674, 675 (1946)); see also Douris v.
Cnty. of Bucks, No. CIV.A. 99-3357, 2001 WL 767579, at *12 (E.D. Pa. July 3,
2001). Nonetheless, where probable cause depends on disputed facts, the court
may wait to make its probable cause determination after the jury has made its
findings. Id. at 434 (citing Simpson, 46 A.2d at 678-79; Thomas v. E.J.
Korvette, Inc., 476 F.2d 471, 475 (3d Cir. 1973)). Given the parties’ vastly
disparate recollections of the factual circumstances surrounding Plaintiff’s
arrest, the Court must defer its finding of probable cause until a jury has
made its factual findings.
In any action brought against an employee of a local
agency for damages on account of an injury to a person or
property based upon claims arising from, or reasonably
related to, the office or the performance of the duties
of the employee, the employee may assert on his own
behalf, or the local agency may assert on his behalf: .
. . [t]he defense that the conduct of the employee which
gave rise to the claim was authorized or required by law,
or that he in good faith reasonably believed the conduct
was authorized or required by law.
Id. § 8546.
Officer Pretti is no doubt legally authorized to
issue a citation where the issuance of that citation is supported
by probable cause.
However, Officer Pretti is not legally
authorized to issue citations to people for whom there is not
probable cause to believe they committed a crime.
facts most favorable to Plaintiff, the Court cannot find that
Officer Pretti had a good faith reasonable belief that he was
permitted to cite Plaintiff for disorderly conduct.
doctrine of qualified immunity is not necessarily coextensive
with Pennsylvania’s official immunity doctrine, the former is
instructive in applying the latter.
As explained in the Court’s
qualified immunity analysis, a jury could find that a reasonable
officer would have known that arresting Plaintiff without
probable cause would violate her clearly established
See supra Part III.A.1.d.
a reasonable officer could not believe he was “authorized or
required by law” to arrest Plaintiff and issue her a citation.8
A reasonable officer would know such an arrest and prosecution
would be unconstitutional.
If the jury finds that Officer Pretti acted maliciously, it
would negate any assertion he acted in good faith.
A finding of
actual malice or willful misconduct would statutorily nullify
Officer Pretti’s official immunity.
See 42 Pa. Cons. Stat. Ann.
§ 8550; accord Pelzer v. City of Philadelphia, 656 F. Supp. 2d
517, 539 (E.D. Pa. 2009).
Plaintiff has plead facts that could
lead a reasonable jury to find that Officer Pretti prosecuted
Plaintiff in the absence of good faith to retaliate against her.
In conclusion, the Court denies Officer Pretti summary judgment
on Plaintiff’s common law malicious prosecution claim.
For the aforementioned reasons, Defendants’ Motion for
Summary Judgment is granted in part and denied in part.
If Pennsylvania law authorized or required Officer Pretti to make
arrests without probable cause, such a law would be unconstitutional. Officer
Pretti’s good faith reliance on a law that unbeknownst to him was
unconstitutional, could potentially afford him official immunity. The Court
need not reach the issue. Defendants have not suggested this is the case.
Furthermore, the Pennsylvania courts have determined that the disorderly
conduct statute under which Plaintiff was charged, 18 Pa. Cons. Stat. Ann. §
5503, is constitutional. See Commonwealth v. Bryner, 652 A.2d 909, 911 (Pa.
Super. Ct. 1995) (citing Commonwealth v. Mastrangelo, 414 A.2d 54 (Pa. 1980),
cert. denied, 449 U.S. 894). The Court, in turn, construes the statute as
only authorizing arrests that are constitutional, i.e. arrests supported by
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