FINNERMAN v. SEPTA et al

Filing 100

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/13/2018. 04/13/2018 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NASIR FINNEMAN,
Plaintiff,
v.
SEPTA, et al.
Defendants.

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CIVIL ACTION
NO. 15-1654

M E M O R A N D U M

EDUARDO C. ROBRENO, J.

April 13, 2018

This civil rights action arises out of Plaintiff’s
arrest at a Southeastern Pennsylvania Transportation Authority
(“SEPTA”)1 station, and subsequent prosecution. Plaintiff Nasir
Finneman2 (“Finneman”) alleges that Defendant Melody Campbell
(“Campbell”) violated his Fourteenth Amendment rights by falsely
reporting to authorities that Finneman had attempted to rob and
assault her. Based on Campbell’s report, Finneman was arrested
and spent five days in jail. Finneman now seeks damages from
Campbell for malicious prosecution by initiating proceedings
1

SEPTA is a regional transportation authority, created by the
Commonwealth of Pennsylvania, that operates a mass-transit system within
Philadelphia and its surrounding counties, as well as points in New Jersey.
See Cooper v. Se. PA Transp. Auth., 548 F.3d 296, 297–98 (3d Cir. 2008)
(citing 74 Pa. Cons. Stat. §§ 1701–1785).
2

Plaintiff’s original complaint identified him as “Nasir
Finnerman,” but his last name is actually “Finneman.” See ECF Nos. 59, 91.

against him without probable cause. Following a bench trial, and
pursuant to Federal Rule of Civil Procedure 52(a), this
Memorandum constitutes the Court’s findings of fact and
conclusions of law. Ultimately, for the following reasons, the
Court will enter judgment for Campbell.

I.

PROCEDURAL BACKGROUND
Finneman filed a pro se complaint on April 7, 2015,

which contained claims against various defendants. ECF No. 3.
Eventually, he obtained a lawyer, and his claims went through
several rounds of pleadings and dismissal before discovery
began. After several motions to dismiss and amended complaints,
the Defendants filed motions for summary judgment as to the
remaining claims. ECF Nos. 62, 63.
The Court granted the Defendants’ motions for summary
judgment as to all claims except those against Campbell, ECF
Nos. 70, 71, leaving Campbell as the sole remaining defendant,
and malicious prosecution (under 42 U.S.C. § 1983 and the
Fourteenth Amendment, as well as state law) as the only
remaining claims.
The Court then held a bench trial, beginning on
February 26, 2018. See ECF No. 90. There, Campbell called three
witnesses: SEPTA Police Sergeant Daniel Caban, SEPTA station
manager William Dicks, and Campbell herself. Finneman called
2

only himself as a witness. The Court has reviewed this testimony
and Campbell’s proposed findings of fact and conclusions of law,3
ECF No. 96, as well as the exhibits admitted at trial. Upon this
record, including credibility determinations, the Court makes
its findings of fact and conclusions of law.

II

FINDINGS OF FACT
At the time of the incident, Campbell was employed by

SEPTA as a cashier. Trial Tr. Day 2 at 138:1-4. ECF No. 96 Ex.
A. As a SEPTA cashier, Campbell sold train tokens and transit
passes, collected fares, and handled money. Id. at 138:5-13. On
April 4, 2013, Campbell was working, alone, at the SEPTA
Kensington and Allegheny station (“the Station”), which is
located in a high-crime and high-drug area. Id. 4:23-25; 144:23
to 145:1. That night, Campbell was working the “late shift,”
which lasted from approximately 3:30 p.m. to 12:50 a.m. the next
day. Id. at 138:23 to 139:24; 140:22 to 141:11. Campbell was
working from inside the cashier booth at the Station, which is a
small room (approximately five feet by seven feet) with one door
to enter and exit. Id. at 142:19 to 143:5. This door locks
automatically when it is fully closed. Id. at 147:22 to 148:5;
149:1-5. Also, the booth contains a telephone that allows on3

Finneman did not submit either proposed findings of fact or
proposed conclusions of law, despite being granted leave to do so by March 9,
2018. See ECF No. 93.

3

duty cashiers to call the SEPTA control center and speak to a
dispatcher. Id. at 146:13 to 147:3.
Passengers who want to take a train enter the Station
at the ground or street level and have the option of taking the
stairs or escalator up to the second level, which is the train
platform level. Id. at 76:18 to 77:11. The cashier booth where
Campbell was working is located on the train platform level, at
the top of the stairs and the top of the escalator. Id. at 16:57; 79:14-17. Adjacent to the booth is a turnstile that
passengers must pass through in order to enter the train
platform. Id. at 77:12-25.
On April 4, 2013, at approximately 11:00 p.m.,
Campbell exited the cashier booth to use the restroom, which was
located several feet from the booth. Id. at 150:5-25 to 151:112. When she exited the booth, she closed the door behind her,
and it locked automatically. Id. at 151:13-21. Campbell remained
in the bathroom for approximately nine minutes. See id. at
150:5-25 to 151:1-12; 153:11-21.
At approximately 11:08 p.m., Finneman entered the
Station and used the escalator to go up to the train platform
level. Id. at 16:5-7; 21:5-14; 79:14-17. On the escalator,
Finneman noticed another person behind him on the escalator,
that Finneman thought looked suspicious. Id. at 23:16-25; 24:16; 25:8-21. This person appeared to be a male dressed in dark
4

clothing, including a hooded sweatshirt. Id. at 22:13-15; 36:5.
This person also had his hand positioned by his sweatshirt in
such a way that made Finneman fear that he might “pull
something,” like a weapon, out from under it. Id. at 36:4-7.
Approximately one minute later, Finneman proceeded through the
turnstile adjacent to the cashier booth. Id. at 92:16-22; 96:2022.
Around the same time, Campbell exited the restroom and
returned to the booth. Id. at 152:4-6. There, she unlocked the
door with her key and entered the booth. Id. Meanwhile, Finneman
was nearby, standing on the platform facing the booth. Although
Campbell tried to close the door behind her, Finneman entered
the booth before she was able to do so. Id. at 105:11-15; 152:46; 153:11-25.4
The interaction between Campbell and Finneman in the
booth created sufficient noise as to draw the attention of
several passengers that were standing on the train platform. See
id. at 152:12-15.5 Shortly after Finneman entered the booth,

4

The parties agree that this is the first time that Finneman and
Campbell saw each other. See id. at 106:22-25; 193:11-12.
5

According to Finneman, he told Campbell he was afraid of a
suspicious person outside of the booth, to which Campbell replied, “Come on,
he’s not worrying about you,” which prompted Finneman to immediately leave
the booth. Id. at 36:14-17; 44:1-21.
In contrast, Campbell testified that Finneman forcibly pushed his
way into the booth, and asked, “Where is it?” In response, Campbell asked,
“Where is what?” and then hit Finneman, who hit her back. Id. at 152:4-20;
158:1-3. The two then struggled over her purse, causing it to rip. Id. at

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these passengers moved towards the booth at a hurried pace. Id.
Approximately thirty seconds later, Finneman exited the booth.
Id. at 168:8-13.
Immediately after Finneman exited the booth, Campbell
called the SEPTA control center using the telephone in the
booth. Id. at 154:20 to 155:1-9. During that call, Campbell
reported to the dispatcher that she had been assaulted and
almost robbed. Id. After exiting the booth, Finneman remained on
the train platform. Id. at 124:10-12.
A few moments later, in response to Campbell’s
telephone call, SEPTA Police Sergeant Daniel Caban arrived at
the Station. See id. at 168:21 to 169:17. Caban passed through
the turnstile and approached the cashier booth. Id. At the
booth, Caban asked Campbell to identify her assailant, and she
pointed out Finneman, who was still present on the train
platform. Id. at 156:25 to 157:7; 168:21 to 169:17. Also, Caban
observed Campbell’s purse and its contents on the floor of the
booth. Trial Tr. Day 3 at 7:13-24. ECF No. 96 Ex. B. Caban then
approached Finneman, handcuffed him, and escorted him off of the
platform. Id. at 7:3-12.
At some point thereafter, Campbell gave a written
statement to Philadelphia Police Detectives, confirming the

154:9-19. Campbell also testified that she, fearing that Finneman was going
to rob or rape her, screamed aloud to attract the group of passengers who
were waiting on the platform nearby. Id. at 152:12-25.

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details of the incident with Finneman that she had previously
relayed via telephone to the SEPTA control center dispatcher.
Trial Tr. Day 2 at 158:12-16; 159:3-13; see also Def. Ex. 6.
Based on these events, the Philadelphia District Attorney’s
Office charged Finneman with robbery, criminal attempt,
receiving stolen property, and simple assault. See Pl. Ex. 6.
Finneman was in custody for approximately five days, before
being released on bail. See Pl. Exs. 5, 6. Finneman then had a
preliminary hearing regarding the charges, at which Campbell
testified, and Finneman was held over for trial. Trial Tr. Day 2
at 162:8 to 163:3. However, Campbell did not return to testify
at Finneman’s trial, despite being under subpoena to do so, id.
at 162:25 to 163:3; 189:24 to 190:1, and the Philadelphia
District Attorney’s Office nolle prossed the charges against
Finneman. See Pl. Ex. 5.
The parties’ sharply contrasting versions of what
occurred when Finneman entered the booth cannot be reconciled
and, therefore, they cannot both be true. The Court must decide,
based on credibility, which party’s version to accept.6 When
making credibility determinations regarding the testimony of
witnesses, a district court considers factors including
variations in demeanor and tone of voice, see Anderson v.
6

Prior to the events underlying this case, Finneman had
interactions with law enforcement. See Trial Tr. Day 2 at 126:15 to 131:1-25.
These interactions were not related to this case, and the Court will not
consider them in determining Finneman’s credibility.

7

Bessemer City, 470 U.S. 564, 575 (1985); basis of knowledge,
outside influence, bias, and extent to which testimony is selfserving, see Dardovitch v. Haltzman, 190 F.3d 125, 140-41 (3d
Cir. 1999); evidentiary support for testimony, United States v.
Kole, 164 F.3d 164, 177 (3d Cir. 1998); and whether testimony is
coherent, plausible, and internally consistent. See Newark
Branch, N.A.A.C.P. v. City of Bayonne, N.J., 134 F.3d 113, 120
(3d Cir. 1998).
Campbell testified that she and Finneman hit each
other, Trial Tr. Day 2 at 152:4-20; 158:1-3, and struggled over
her purse, causing it to rip. Id. at 154:9-19. Campbell also
testified that she screamed aloud to attract the group of
passengers who were waiting on the platform nearby. Id. at
152:12-25. Other evidence supports Campbell’s version of the
facts.
The security video clearly shows the group of nearby
passengers hurrying toward the booth, just after the Finneman
entered it. This supports Campbell’s testimony that she
screamed. Also, Caban observed Campbell’s purse and its contents
on the floor of the booth, mere moments after Finneman had
exited it. Similarly, this supports Campbell’s testimony that
the parties struggled over her purse. Additionally, the fact
that Campbell’s call to the SEPTA control center was made
immediately after Finneman exited the booth supports Campbell’s
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version of the events, because she therefore made the call while
still in an excited state caused by her interaction with
Finneman.7
Finneman claims that Campbell falsely concocted her
story of assault and attempted robbery, in an effort fabricate
an injury or disability and thereby obtain workers’ compensation
or some similar benefit. See id. at 177:20-21; 178:1-13.
However, as noted, Campbell made the telephone call to the
dispatcher almost instantly after Finneman exited the booth, and
there simply was not sufficient time to plan such a scheme.
Finneman also claims that Campbell spoke normally to
him, he did not touch her purse, and the two had no physical
interaction. See id. at 36:14-17; 44:1-21. However, this
testimony is undermined by other evidence. Caban observed
Campbell’s purse and its contents on the floor of the booth,
Trial Tr. Day 3 at 7:13-24, which contradicts Finneman’s
version, wherein the purse was not involved. Similarly, the
security video clearly shows the group of nearby passengers
hurrying toward the booth, just after the Finneman entered it.
The video undermines Finneman’s version, wherein Finneman and
Campbell spoke normally to each other, which would not have
caused enough noise to draw the passengers to the booth.
7

See United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001)
(citing Federal Rule of Evidence 803(2)) (discussing the policy and rationale
of the hearsay exception for an excited utterance).

9

Accordingly, there is evidentiary support for
Campbell’s testimony, see Kole, 164 F.3d at 177, while the
evidence undermines Finneman’s testimony. See id. On this basis,
and considering that Campbell’s testimony was coherent,
plausible, and internally consistent, see Newark Branch, 134
F.3d at 120, the Court finds, by a preponderance of the
evidence, that Campbell’s version of what happened inside the
booth is credible.

III. CONCLUSIONS OF LAW
To succeed on a claim for malicious prosecution under
42 U.S.C. § 1983, Finneman needs to show that 1) Campbell
initiated a criminal proceeding; 2) the criminal proceeding
ended in Finneman’s favor; 3) the proceeding was initiated
without probable cause; 4) Campbell acted maliciously or for a
purpose other than bringing Finneman to justice; and 5) Finneman
suffered a deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding. See, e.g.,
Finnemen v. SEPTA, 267 F. Supp. 3d 639, 643 (E.D. Pa. 2017)
(Robreno, J.) (citations omitted).
“Probable cause is proof of facts and circumstances
that would convince a reasonable, honest individual that the
suspected person is guilty of a criminal offense.” Telepo v.
Palmer Twp., 40 F. Supp. 2d 596, 610 (E.D. Pa. 1999) (Robreno,
10

J.) (quoting Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir.
1993)). Probable cause means more than mere suspicion, and is
“defined in terms of facts and circumstances sufficient to
warrant a prudent [person] in believing the suspect had
committed or was committing an offense.” Id. at 610-11
(citations and internal quotations omitted).
As explained above, the Court finds that Campbell’s
version of what happened in the booth is credible. Because the
Court has accepted Campbell’s version, it has thereby found
facts “sufficient to warrant a prudent [person] in believing the
suspect had committed or was committing an offense,” id. at 61011 (internal quotation marks omitted), such as attempted robbery
or assault. These facts include, inter alia, that Finneman
struggled with Campbell for her purse. For that reason, Finneman
has failed to establish that Campbell initiated the proceedings
against him without probable cause under § 1983. Accordingly,
his claim under § 1983 fails.
Similarly, in order to establish a malicious
prosecution claim under Pennsylvania law, Finneman needs to show
that Campbell instituted proceedings against him 1) without
probable cause, 2) with malice, and 3) the proceedings must have
terminated in favor of Finneman. Kelley v. Gen. Teamsters,
Chauffeurs & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa.
1988) (citing Miller v. Pennsylvania R.R. Co., 89 A.2d 809, 81111

12 (Pa. 1952)). In this context, probable cause is defined as “a
reasonable ground of suspicion supported by circumstances
sufficient to warrant an ordinary prudent [person] in the same
situation in believing that the party is guilty of the offense.”
Miller, 98 A.2d at 811.
Here also, because the Court finds that the parties,
inter alia, physically struggled over Campbell’s purse, Campbell
had “a reasonable ground of suspicion” for her statements to
authorities. See Miller, 98 A.2d at 811. Therefore, Finneman has
failed to establish that Campbell initiated the proceedings
against him without probable cause under Pennsylvania law.
Accordingly, his claim under Pennsylvania law fails.

IV.

CONCLUSION
For the reasons discussed above, the Court will enter

judgment for Defendant Campbell. The Court will also deny as
moot Defendant’s Motion in Limine (ECF No. 88) and Defendant’s
Motion for Judgment as a Matter of Law (ECF No. 92).
An appropriate order follows.

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