SIMMERS v. ELO et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/5/2015. 6/5/2015 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES ELO; MIKE KELLY; TIMOTHY
DEERY; JOSE COLLAZO; JAMES W.
AVERY; JOSEPH RALSTON; ANDREW
KELLY; NEHEMIAH HAIGLER; JOHN
BRENNAN; AVRIL EKLUND; TIMOTHY
RILEY; and JOHN AND JANE DOES 1-25,
This action arises out of the arrest of Plaintiff James Simmers, the charges filed against
him and the ultimate withdrawal of those charges. Simmers has sued a number of police officers
for unlawful arrest, unlawful search and malicious prosecution as well as additional state-law
claims. The Defendants move to dismiss the unlawful arrest and malicious prosecution claims.
Plaintiff has conceded that the state-law claims must be dismissed on sovereign immunity
grounds, see Robinson v. Ridge, 996 F. Supp. 447, 446 & n.3 (E.D. Pa. 1997). Mot. at 11.
Accordingly, Plaintiffs claims for false imprisonment and for intentional infliction of emotional
distress will be dismissed with prejudice. For the reasons set out below, the motion will be
granted in part and denied in part.
Defendants are agents of the Pennsylvania State Attorney General's office, working for
the Bureau of Narcotics Investigation. Am. Compl. if 4. For some time prior to November,
2012, Defendants conducted an investigation into alleged trafficking of methamphetamines in
southeastern Pennsylvania. Id.
ifi! 4-5. That investigation culminated in the arrest of multiple
individuals, including Simmers and another person named Francis Gulich. Id. 'if'il 4-5, 9. Some
of the arrested individuals owned businesses related to auto repair or had an interest in auto
repair and motorcycles. Id. 'if 14. Defendants intercepted a number of telephone calls between
those individuals and determined that they used coded language to refer to drugs, including
"tires," "muffins," "flow," "sawzall," "beers," and "things."
16. The Defendants made that
determination through listening to the calls, observing the callers interacting with each other
following the calls, searching residences and businesses and interviewing individuals involved in
the drug activity. Id. 'if 17.
The Defendants also listened to telephone calls between Simmers and Gulich. Id. 'if 20.
During those calls, Simmers asked Gulich for motorcycle parts, and Defendants assumed that
Simmers instead was using coded language to ask Gulich for drugs. Id. 'if'il 20-21. The
Complaint alleges to the contrary. Simmers actually was asking Gulich for parts for Simmers'
motorcycle. Id. 'if 22. Simmers and Gulich had developed a friendship over their mutual interest
in motorcycle riding and repair. Id. 'if'il 10-11. Gulich had another friend who had access to
motorcycle parts from his business of repossessing motorcycles, and Gulich sometimes would
give parts from those repossessions to Simmers. Id. 'if 12.
Defendants relied solely on the phone conversations between Simmers and Gulich
regarding motorcycle parts to conclude that Simmers was guilty of drug distribution activity.
Id. 'if 20. Defendants searched Simmers' home, but found no contraband or evidence of drug
distribution. Id. 'if 29. Neither did surveillance or statements of others involved in the drug
activity corroborate that conclusion. Id. 'if 25. Nevertheless, they arrested Simmers and charged
him with various drug and conspiracy-related crimes. Id. 'if 26. Over one year later, the
Commonwealth withdrew all charges against Simmers. Id. 'if 35.
Motion to Dismiss Standard
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
determining the adequacy of a complaint to state a cause of action, the Court must "accept all
factual allegations as true [and] construe the complaint in the light most favorable to plaintiff."
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011).
Whether the Claims are Pleaded With Adequate Specificity
Defendants argue that Simmers fails to state a claim under 42 U.S.C. § 1983 because he
does not specify the specific wrongful conduct of each of the Defendants individually. Mot. at 56. To be liable under Section 1983, a defendant "'must have personal involvement in the alleged
wrongs."' Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2007) (quoting Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir 1988)). A defendant '"cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved."' Baraka v.
McGreevey, 481F.3d187, 210 (3d. Cir. 2007) (quoting CH ex rel. ZHv. Oliva, 226 F.3d 198,
201 (3d Cir. 2000)). Here, Simmers has alleged that each of the Defendants arrested him without
probable cause, Am. Compl.
'if'il 26-27, 29-30, 32, 44, and that each of them searched his home
without probable cause or a warrant. Id.
'if'il 21-22, 24-25, 28, 48. Defendants argue that "it is
obviously not possible for all [Defendants] to have participated in Plaintiffs arrest." Mot. at 5.
However, regardless whether the allegation appears likely to be accurate, for the purpose of this
motion to dismiss, the alleged "facts must be taken as true and a complaint may not be dismissed
merely because it appears unlikely that the plaintiff can prove those facts or will ultimately
prevail on those merits." Phillips, 515 F.3d at 231.
Defendants also argue that the Amended Complaint "gives [them] no clue as to what they
are alleged to have done, making defending against the claims next to impossible." Mot. at 6.
That argument does not pass muster. To state a Section 1983 claim for false arrest, a plaintiff
must allege that a defendant arrested him without probable cause and that the defendant knew he
lacked a factual or legal basis for the arrest. Paff v. Kaltenbach, 204 F.3d 425, 435 (3d Cir.
2008). "Probable cause exists when the facts known to the officer are sufficient to warrant a
reasonable person to believe that the offense has been committed." Eckman v. Lancaster City,
529 F. App'x 185, 186 (3d Cir. 2013); Orsatti v. NJ State Police, 71 F.3d 480, 483 (3d Cir.
1995). Whether probable cause exists is generally a factual issue. Eckman, 529 F.3d at 186;
Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d. Cir. 1995).
Simmer has alleged that the only evidence Defendants had that he might be involved in a
methamphetamine ring was that they heard him discussing obtaining motorcycle parts from
Gulich. Am. Compl. ifif 16-17, 20, 26. Defendants had information corroborating their
assumption that the phone calls of the other individuals under investigation concerned drug sales
in the form of their conduct after the phone calls, searches conducted by Defendants in which
they found materials reflecting drug distribution, and testimony from cooperating witnesses. Id
ifif 17-19. As to Simmers, however, the Defendants had no such evidence: a search of his
residence revealed no evidence relating to drug distribution, and none of the persons interviewed
mentioned him as a part of the drug ring. Id.
ifif 18-19, 22. Simmers further alleges that
Defendants simply ignored the fact that he was the owner of a salvage yard and his interest in
repairing and riding motorcycles, which he alleges provided an exculpatory, and accurate,
explanation of his telephone calls with Gulich regarding motorcycle parts. Id
Defendants know what Plaintiff alleges they have done-arrested him without probable cause.
And they know what they need to defend against-the allegation that they knew they lacked a
factual and legal basis for probable cause in making that arrest.
Simmers' Amended Complaint "contain[s] sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face."' Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Simmers alleges that Defendants searched his residence without a warrant and
without probable cause. "[S]earches and seizures inside a home without a warrant are
presumptively unreasonable." Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (quoting
Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks omitted)). "[W]arrants are
generally required to search a person's home or his person unless the exigencies of the situation
make the needs of law enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 393-94 (1978).
"Regardless whether [such] an exception [to the warrant requirement] applies, a warrantless
search generally must be supported by probable cause." New Jersey v. T.L. 0., 469 U.S. 325, 340
(1985). Probable cause exists if there is "fair probability that contraband or evidence of a crime
will be found in a particular place." See Illinois v. Gates, 462 U.S. 213, 238 (1983). Thus
Simmers' allegation that Defendants searched his residence without a warrant and without
probable cause states a valid claim. And, as discussed above, Simmers adequately has pied the
factual basis on which he alleges that Defendants lacked probable cause to search his residence.
The Malicious Prosecution Claim
Defendants argue Simmers has failed to state a valid claim for malicious prosecution
because he has not adequately alleged that they initiated a criminal proceeding against him. Mot.
at 8-9. 1 Ordinarily, a malicious prosecution claim must proceed against a prosecutor because it
is the prosecutor who initiates the prosecution. Strange v. Freeman, No. 11-7911, 2012 WL
5494666, at *2 (E.D. Pa. Nov. 13, 2005); Harris v. City of Philadelphia, No. 07-493, 2008WL
481061, at *5 (E.D. Pa. Aug. 14, 1998). "A police officer can be liable for malicious prosecution
if he or she 'fails to disclose exculpatory evidence to prosecutors, makes false or misleading
reports to the prosecutor, omits material information from the reports, or otherwise interferes
with the prosecutor's ability to exercise independent judgment in deciding whether to
prosecute."' Strange, 2012 WL 5494666, at 2 (quoting Zeglen v. Miller, Civ. A. No. 04-1940,
2008 WL 696940, at *8 (M.D. Pa. Mar. 12, 2008)); see Napier v. City of New Castle, 407 F.
App'x 578, 584 (3d Cir. 2010). In his Amended Complaint, Simmers has not alleged that
Defendants made false or misleading statements to a prosecutor. He has not alleged that they
interfered with the prosecutor's ability to exercise independent judgment. Neither has he alleged
anything concerning the contents of any reports made by Defendants. Although, Simmers does
allege that Defendants were aware of exculpatory information and that they failed to provide that
information "to Plaintiff or his criminal counsel," Am. Compl. iii! 30-31 (emphasis added), he
does not allege that Defendants withheld evidence from the prosecutor, which is what he must do
To prevail in a Section 1983 action malicious prosecution action, a plaintiff must show: (1) the defendants
initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiffs favor; (3) the proceeding was
initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the
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. DiBella v. Borough ofBeachwood, 407 F.3d 599, 601 (3d Cir. 2005) (quoting
Estate ofSmith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).
to succeed on a malicious prosecution claim. Thus, Simmers has failed to state a claim for
malicious prosecution and, accordingly, that claim will be dismissed.
BY THE COURT:
WENDY BEETLESTONE, J.
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