HOUSTON v. THE CITY OF PHILADELPHIA et al
MEMORANDUM OPINION SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/20/15. 7/20/15 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE CITY OF PHILADELPHIA, et al., :
July 20, 2015
Plaintiff Aaron Houston, proceeding pro se, raises claims for violation of his
constitutional rights pursuant to 42 U.S.C. § 1983 as well as pendant state law claims arising
from Defendants’ alleged seizure and retention of his gun. Defendants are the City of
Philadelphia and several officials of the Philadelphia Police Department: Police Commissioner
Charles Ramsey, Detective Mary Caldwell, Officer Anthony Barbera, and Officer Carol Austin.
Presently before the Court is Defendants’ motion for summary judgment. 1
On September 24, 2011, Mr. Houston was arrested and his gun was seized by the
Philadelphia police. The parties were unable to agree on a joint statement of material facts and
provide differing accounts of the events of September 24, 2011.
Defendants’ Account of the Events of September 24, 2011
Defendants, relying upon the police reports and other documentation, provide the
following account of events. At approximately 4:30 A.M., the Philadelphia police responded to a
Attached to Mr. Houston’s reply brief is a two-page “Counter Claim for Partial Summary Judgment.”
Doc. No. 45 at 29-30. Because this document was filed with the reply brief and contains no substantial reasoning
independent of the claims made in the reply brief, the Court construes the document as part of the reply brief rather
than as a cross-motion for summary judgment.
radio call that an aggravated assault with a gun was in progress at Mr. Houston’s apartment in
South Philadelphia. 2 When the police arrived on the scene, the responding officers were told by
multiple witnesses that Mr. Houston had punched his roommate Evelyn Ramos in the face during
an argument and then pointed a handgun at Ms. Ramos’s boyfriend, Thomas Carmody, as well as
one Michael Morrissey. 3 Based upon these witness statements, Officer Anthony Barbera arrested
Mr. Houston. 4
At the time of his arrest, Mr. Houston told Officer Barbera that “I have a gun legally but I
put it away” and no gun was recovered. 5 At approximately 5 A.M., Detective Mary Caldwell
arrived on the scene and spoke to Officer Barbera. 6 Based upon this conversation, Detective
Caldwell prepared an affidavit of probable cause and applied for a search warrant to recover the
gun. 7 Shortly before 10 A.M., the Honorable Robert J. Rebstock of the Philadelphia Court of
Common Pleas issued a search warrant for Mr. Houston’s bedroom. 8 Detective Caldwell
executed the warrant and recovered the gun at approximately 10:10 A.M. 9 No other weapons
were recovered from the scene at the time of arrest or pursuant to the warrant.
Mr. Houston’s Account of the Events of September 24, 2011
Mr. Houston’s deposition testimony presents a narrative that differs in several respects
from Defendants’ account of the events of September 24, 2011. In his testimony, Mr. Houston
Doc. No. 47-3 at 1.
Id.; Doc. No. 47-1 at 1-2.
Doc. No. 47-3 at 1.
Doc. No. 47-1 at 1.
Id. at 2.
Id.; see also Doc. No. 47-2 (the warrant).
states that he was awakened at 3:35 A.M. by the sound of Ms. Ramos and another roommate,
Haley Dampf, shouting drunken insults out of a window at passersby on the street below. 10
When he asked Ms. Ramos to quiet down, she became increasingly belligerent and attacked him,
and Ms. Dampf subsequently joined in the attack. 11 Mr. Houston was able to push the two
women off of him and retreat to his bedroom, at which point he tried to go back to sleep. 12
At approximately 4 A.M., Mr. Carmody arrived at the apartment accompanied by Mr.
Morrissey. 13 Both men threatened Mr. Houston and used racial slurs, and then forced open the
bedroom door. 14 Mr. Carmody was holding a small throwing knife and Mr. Houston responded
by pointing a nine millimeter handgun at both men. 15 Following a brief standoff, Mr. Carmody
and Mr. Morrissey left Mr. Houston’s bedroom and Mr. Houston returned his gun to a safety
box.16 Although Mr. Carmody remained in the hallway, Mr. Houston walked unarmed from his
bedroom to the door of the apartment to let the police in. 17
Mr. Houston also testified that Officer Barbera threw him to the ground and arrested
him. 18 Although Mr. Houston claims that, while under arrest, he overheard the witnesses giving
their statements to the responding officers, Mr. Houston contends that the witness statements
were “blatant lies” that the responding officers chose to believe in order to “get an easy
Transcript of Oral Deposition of Aaron Houston conducted July 14, 2014 (Doc. No. 51) (“Depo Tr.”) at
Id. at 17-18.
Id. at 17-18, 22.
Id. at 19.
Depo. Tr. at 25, 28.
Id. at 25, 31.
Id. at 26.
Id. at 29.
conviction out of” Mr. Houston. 19 Specifically, the responding officers should have known that
Mr. Carmody was lying because, by his account, the police seized the knife and Mr. Carmody
subsequently claimed to have been unarmed. 20
Mr. Houston claims that his gun was then seized by the police at the time of his arrest
during a warrantless search of his bedroom. 21 Over the course of this litigation, Mr. Houston has
provided conflicting accounts of which officer seized the gun. In the complaint, Mr. Houston
alleged that Officer Barbera seized the gun. 22 At his deposition, Mr. Houston testified that he had
seen another, unnamed officer do so. 23 After Defendants moved for summary judgment, Mr.
Houston filed an affidavit attached to his sur-reply brief stating that he had “witnessed” Officer
Barbera seizing the gun. 24
Mr. Houston did not discuss the search warrant in his deposition testimony. In his filings,
however, Mr. Houston contends that the warrant was “fabricated by Det. Caldwell retroactively”
without further explanation of the claim. 25
Events After September 24, 2011
Because the parties do not offer distinct accounts of the facts as they pertain to events
occurring after September 24, 2011, the following account of those events is drawn from the
parties’ filings, the documents in the record, and Mr. Houston’s deposition testimony. Mr.
Houston was charged in the Philadelphia Court of Common Pleas with simple assault and
Id. at 30.
Doc. No. 1 at 3.
Depo. Tr. at 32-34.
Doc. No. 48 at 20.
Id. at 2.
recklessly endangering another person. 26 Mr. Houston alleges that he orally requested the return
of his gun at a hearing during the criminal case, but the request was not ruled upon. 27 The
charges were subsequently dismissed because the Commonwealth’s witnesses failed to appear. 28
On July 9, 2012, the Court of Common Pleas ordered the expungement of all records of Mr.
Houston’s arrest. 29
Mr. Houston subsequently purchased another nine millimeter handgun and applied for a
license to carry a concealed weapon. 30 As part of the application process, Mr. Houston claims
that he was interviewed by an unnamed police officer who told him that his application was
denied because of his expunged arrest record and because he had a bad character. 31 On April 29,
2013, the Philadelphia Police Department mailed Mr. Houston a written denial of his
application. 32 Mr. Houston timely appealed the Police Department’s decision to the City of
Philadelphia Board of License and Inspection Review, which affirmed and informed Mr.
Houston that he could pursue an appeal to the Court of Common Pleas. 33 Mr. Houston did not
file an appeal. 34
Mr. Houston also attempted to obtain the return of the gun seized in 2011. Mr. Houston
claims that an unnamed employee of the Philadelphia Police Department provided Mr. Houston
Doc. No. 45 at 9-10.
Doc. No. 48 at 3.
Depo. Tr. at 47.
Doc. No. 45 at 9-10.
Depo. Tr. at 36, 40.
Id. at 40.
Doc. No. 45 at 11.
Doc. No. 45 at 12.
Depo. Tr. at 45.
with a telephone number at which to request the return of his gun, and when Mr. Houston called
the number, another unnamed individual told Mr. Houston that he would have to hire a lawyer
and go to court in order for the Philadelphia police to return his gun. 35 Based upon this phone
call, Mr. Houston concluded that the Philadelphia police were engaging in “procedural
harassment” and would not return his gun. 36 On August 21, 2013, the Police Department sent
Mr. Houston a letter stating that his request had been denied and informing Mr. Houston that he
could petition the Court of Common Pleas for return of his property pursuant to Pennsylvania
Rule of Criminal Procedure 588. 37 The record contains no evidence that Mr. Houston filed a
Rule 588 motion or that his gun was returned.
STANDARD OF REVIEW
A court will award summary judgment on a claim or part of a claim where there is “no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” 38 A fact is “material” if resolving the dispute over the fact “might affect the outcome of the
suit under the governing [substantive] law.” 39 A dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” 40 In the event that a party who
will bear the burden of proof at trial “fails to make a showing sufficient to establish the existence
Id. at 38.
Doc. No. 45 at 13.
Fed. R. Civ. P. 56(a).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
of an element essential to that party’s case,” the Rules of Civil Procedure “mandate the entry of
summary judgment” against that party. 41
While Mr. Houston’s claims are difficult to delineate because the complaint does not
state each claim as a separate count, the Court construes the complaint to raise an array of
constitutional claims, including claims for violation of Mr. Houston’s Fourth and Fourteenth
Amendment rights, as well as various state-law claims.
A. Fourth Amendment Claims
In order to prevail on a civil rights claim, the plaintiff must prove two elements: first, that
the defendant acted “under color” of state law or custom; and second, that the defendant deprived
the plaintiff of a right protected by the federal constitution or other federal law. 42 The first
element is not disputed. In the complaint, Mr. Houston appears to allege three violations of his
Fourth Amendment rights on September 24, 2011: 1) a false arrest by Officer Barbera; 2) a
warrantless search of his bedroom leading to the unlawful seizure of the gun; and 3) a search
warrant “fabricated” by Detective Caldwell. 43
The complaint appears to allege that Officer Barbera falsely arrested Mr. Houston, and at
his deposition, Mr. Houston continued to assert that Officer Barbera was unjustified in arresting
him. 44 In his response to Defendants’ motion for summary judgment on the false arrest claim,
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See 42 U.S.C. § 1983.
Doc. No. 1 at 3 (alleging fabrication of the warrant).
Doc. No. 1 at 3; Depo. Tr. at 30.
however, Mr. Houston stated that he had never sought to bring a false arrest claim. 45 The Court
construes this statement as a withdrawal of any false arrest claim that might appear on the face of
The Court will nevertheless address the merits of the false arrest claim because the claim
appears on the face of the complaint and Defendants have moved for summary judgment on the
claim. “To maintain a § 1983 false arrest claim, a plaintiff must show that the arresting officer
lacked probable cause to make the arrest.” 46 “Probable cause exists when the totality of facts and
circumstances are sufficient to warrant an ordinarily prudent officer to believe that the party
charged has committed an offense.” 47 The reports of multiple witnesses at the scene that Mr.
Houston had assaulted Ms. Ramos and pointed a gun at Mr. Carmody were more than sufficient
to establish probable cause, whether or not Mr. Carmody was holding a small knife. Defendants’
motion for summary judgment will therefore be granted on this claim.
The Warrantless Search of the Bedroom and Seizure of the Gun
Although the allegation is not clearly pleaded, the complaint appears to allege that
Officer Barbera searched Mr. Houston’s bedroom and seized his gun without a warrant. 48 In his
deposition testimony, however, Mr. Houston was unequivocal that another, unnamed officer had
performed the search and seizure:
Q: Did you see who took the gun out of the safety box?
A: I saw the officer come out of my room with the firearm. I don’t know the name
of the officer. The only officer’s name I have is Anthony Barbera. There were six
officers at the scene.
Doc. No. 45 at 4.
Garcia v. County of Bucks, PA, 155 F. Supp. 2d 259, 265 (E.D. Pa. 2001) (citing Dowling v. City of
Phila., 855 F.2d 136, 141 (3d Cir. 1988)).
Id. (citing Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997)).
Doc. No. 1 at 3.
Q: In your complaint you say the Defendant, Barbera, unlawfully searched
Plaintiff’s room and confiscated a nine-millimeter firearm belonging to [P]laintiff.
You don’t know that it was Officer Barbera that actually took the gun out
of your room; is that right?
A: That’s right. Officer Barbera is the only name I had. So Officer Barbera and
company would be a more accurate depiction.
Q: How did you get Officer Barbera’s name?
A: I believe he was in the police report as the arresting officer.
Q: And Officer Barbera, are you sure that he is the officer who pushed you to the
Q: Is it fair to say that you know who Officer Barbera is because you know he
pushed you to the ground and you don’t know the officer that seized the gun, is it
fair to say it wasn’t Officer Barbera?
A: That seized the firearm himself?
Q: Yes. Since you’re certain that he’s the officer that confiscated the gun.
A: I don’t know the name of the officer, no.
Q: But if it was Officer Barbera, you would know that.
A: Yes. 49
After Defendants moved for summary judgment, however, Mr. Houston filed an affidavit
attached to his sur-reply brief affirming that “[a]s stated at fact 2 of the original complaint,
Affiant witnessed P.O. Barbera confiscate his firearm on September 30, 2011 [sic] at 4:30
AM.” 50 This affidavit is the only evidence in the record that Officer Barbera seized the gun
without a warrant. 51
It is settled law that “a party may not create a material issue of fact to defeat summary
judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating
a plausible explanation for the conflict.” 52 The purpose of this doctrine is to prevent a party from
forestalling summary judgment by contradicting his own testimony. 53 Mr. Houston’s belated
Depo. Tr. at 32-34.
Doc. No. 48 at 20.
Mr. Houston also cites Officer Barbera’s police report, but the report states that the police intended to
obtain a search warrant in order to recover the gun. See Doc. No. 48 at 7.
Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004).
Id. (citing Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969)).
affidavit flatly contradicts his deposition testimony that an unnamed officer – who Mr. Houston
was certain was not Officer Barbera – seized the gun and Mr. Houston provides no explanation
whatsoever for the discrepancy. The affidavit therefore fails to create a genuine dispute of
material fact as to whether Officer Barbera seized the gun.
Officer Barbera is the only officer named in the complaint as having seized the gun. The
unnamed officer discussed in the deposition testimony is not a party to this case and the
complaint makes no allegations regarding the actions of an unnamed officer. According to his
deposition testimony, Mr. Houston personally witnessed the unnamed officer seize the gun and
Mr. Houston never sought to amend his complaint to add the unnamed officer as a defendant
despite having ample time to do so. Mr. Houston has therefore failed to bring any claim arising
from the actions of the unnamed officer before this Court and such a claim cannot create a
genuine dispute of material fact.
There is also no basis to hold the named defendants liable for the alleged actions of the
unnamed officer. There is no vicarious liability for a § 1983 claim; in order to prevail, the
plaintiff must establish that each defendant had “personal involvement in the alleged wrongs.” 54
When the defendant is a municipality, the plaintiff must demonstrate the existence of a municipal
policy or custom of deliberate indifference to the constitutional rights of its citizens. 55 The record
contains no evidence that any of the individual named defendants were personally involved in
the alleged actions of the unnamed officer or that the City had a policy or custom of deliberate
indifference to its citizens’ Fourth Amendment rights. For these reasons, Defendants’ motion for
summary judgment will be granted on this claim.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
The Search Warrant “Fabricated” by Detective Caldwell
Although unclear, the Court will construe Mr. Houston’s allegation that the warrant was
“fabricated retroactively by defendant Det. Caldwell” as a claim that Detective Caldwell
obtained the warrant under false pretenses. 56 In order to prevail on such a claim, the plaintiff
must show, “(1) that the affiant knowingly and deliberately, or with a reckless disregard for the
truth, made false statements or omissions that create a falsehood in applying for a warrant; and
(2) that such statements or omissions are material, or necessary, to the finding of probable
cause.” 57 Mr. Houston does not allege what false statement(s) Detective Caldwell may have
made in applying for the warrant. Moreover, even if an unnamed officer seized the gun at 4:30
A.M., the deposition testimony does not establish that Detective Caldwell, who did not arrive
until 5 A.M., was aware of the seizure when she applied for the search warrant, and Mr. Houston
has not produced any other evidence to establish that Detective Caldwell knew or should have
known that she was making a false statement in applying for the warrant. Defendants’ motion for
summary judgment on this claim will therefore be granted.
B. Fourteenth Amendment Claims
Mr. Houston raises two Fourteenth Amendment claims: 1) that Defendants denied Mr.
Houston equal protection of the laws in seizing and retaining his gun, as well as in denying his
application for a concealed carry permit; and 2) that Defendants violated Mr. Houston’s right to
due process of law by failing to return the gun after the charges against Mr. Houston were
dismissed. “To bring a viable equal protection claim, a plaintiff must allege that a defendant
treated him or her differently than others similarly situated, and that such selective treatment was
Doc. No. 1 at 3.
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997).
predicated upon membership in a suspect class (e.g. race, gender) or designed to inhibit
fundamental rights.” 58 The record, however, contains no evidence that Defendants treated
Plaintiff differently from anyone else in seizing his gun or denying him a concealed carry
permit. 59 Mr. Houston has therefore failed to establish an essential element of his equal
In order to bring a claim against a state, its subdivisions or its agents for violation of the
due process clause,
a plaintiff must have taken advantage of the processes that are available to him or
her, unless those processes are unavailable or patently inadequate. ‘[A] state
cannot be held to have violated due process requirements when it has made
procedural protection available and the plaintiff has simply refused to avail
himself of them.’ … A due process violation ‘is not complete when the
deprivation occurs; it is not complete unless and until the State fails to provide
due process.’ 60
Pennsylvania Rule of Criminal Procedure 588(a) reads,
A person aggrieved by a search and seizure, whether or not executed pursuant to a
warrant, may move for the return of the property on the ground that he or she is
entitled to lawful possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was seized.
Thus, a Rule 588 motion was a process available to Mr. Houston to obtain the return of his gun.
Mr. Houston contends that a Rule 588 motion is too “expensive and burdensome” to constitute
an adequate remedy. 61 In his deposition testimony, Mr. Houston stated that an unnamed
Wargo v. Municipality of Monroeville, PA, 646 F. Supp. 2d 777, 789 (W.D. Pa. 2009) (citing City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985)).
With regard to the denial of a concealed carry permit, Mr. Houston claims that a notice of a proposed
settlement in a class action lawsuit against the City of Philadelphia constitutes evidence that Defendants intended to
deprive him of his Second Amendment rights. See Doc. No. 48 at 9-15 (the notice). The notice, however, appears to
address privacy concerns and does not discuss any Second Amendment claims.
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (internal citations omitted).
Doc. No. 48 at 3.
individual told him that he would have to hire a lawyer in order to obtain the return of his gun, 62
and in his filings he also alleges that a $200 transcript of prior proceedings was required. 63
Neither of these alleged hearsay statements are competent evidence of the requirements for filing
a Rule 588 motion and therefore Plaintiff has failed to meet his burden to show that Rule 588
relief was unavailable or patently inadequate. 64
C. Remaining Constitutional Claims
Mr. Houston also contends that Defendants violated his Second, Fifth and Sixth
Amendment rights. Mr. Houston contends that Defendants violated his Second Amendment
rights by seizing and retaining the gun, and by denying him a concealed carry permit. In a
thoughtful opinion, the Eighth Circuit held in Walters v. Wolf that the seizure of a particular gun
does not constitute a violation of the Second Amendment when the plaintiff is later able to
purchase another gun. 65 Mr. Houston was able to purchase an additional gun and also failed to
utilize the Rule 588 process in order to obtain the return of this gun. With regard to the denial of
a concealed carry permit, in a thorough and well-reasoned opinion, the Tenth Circuit held in
Peterson v. Martinez that there is no Second Amendment right to carry concealed firearms. 66 Mr.
Houston also failed to utilize the process the Commonwealth had made available for challenging
the denial of a concealed carry permit: an appeal to the Court of Common Pleas. With the
Depo. Tr. at 38.
Doc. No. 48 at 3.
Mr. Houston also contends that he attempted to pursue Rule 588 relief by orally requesting the return of
his gun during a hearing in his criminal case. Because Rule 588 is clear that any motion must be filed, any oral
request that Mr. Houston may have made was not a proper means to make a Rule 588 motion.
Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011).
Peterson v. Martinez, 707 F.3d 1197, 1211 (10th Cir. 2013) cited with approval in Drake v. Filko, 724
F.3d 426, 433-34 (3d Cir. 2013) (holding that New Jersey law requiring showing of justifiable need to obtain a
permit to carry a handgun in public does not violate the Second Amendment).
guidance of the decisions of the Eighth and Tenth Circuits, this Court determines that Mr.
Houston has not met his burden to establish a violation of his Second Amendment rights.
Mr. Houston’s Fifth and Sixth Amendment claims are plainly without merit. The
protections of the Fifth Amendment apply only to the federal government and its agents, and
none of the Defendants are agents of the federal government. 67 The protections of the Sixth
Amendment are limited to the government’s conduct during a criminal prosecution, and the
criminal charges against Mr. Houston were dismissed. 68
D. State Law Claims
The complaint appears to raise state-law claims for violation of the Pennsylvania
constitution, conversion, libel and slander. This Court exercises federal question jurisdiction over
this action, and because Defendants’ motion for summary judgment will be granted on all federal
claims, the Court will consider whether to exercise supplemental jurisdiction over the state-law
claims. Pursuant to 28 U.S.C. § 1367(c)(3), “[t]he district courts may decline to exercise
supplemental jurisdiction under subsection (a) if … the district court has dismissed all claims
over which it has original jurisdiction …” In exercising its discretion to accept or decline
supplemental jurisdiction over a claim, a court “should take into account generally accepted
principles of ‘judicial economy, convenience, and fairness to the litigants.’” 69
Under the circumstances of this case, the Court determines that these principles are best
served by declining to exercise supplemental jurisdiction over the state-law claims. The state-law
claims are pleaded in conclusory fashion and have not been developed in any briefing, and
See Nguyen v. U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983).
See United States v. Ward, 448 U.S. 242, 248 (1980).
Growth Horizons, Inc. v. Del. County, 983 F.2d 1277, 1284 (3d Cir. 1992) (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
Defendants have not filed a response to the conversion, libel and slander claims. The state-law
claims will therefore be dismissed without prejudice to their re-assertion, if appropriate, in state
For these reasons, Defendants’ motion for summary judgment will be granted on all of
Mr. Houston’s federal claims and the Court declines to exercise supplemental jurisdiction over
Mr. Houston’s state-law claims. Mr. Houston also filed a motion to compel long after the time
for fact discovery had elapsed, which will be dismissed as untimely.
An appropriate order follows.
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