FINNERMAN v. SEPTA et al

Filing 70

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 07/25/2017. 07/25/2017 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NASIR FINNEMEN,

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Plaintiff,
v.
SEPTA, et al.
Defendants.

CIVIL ACTION
NO. 15-1654

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 25, 2017

This civil rights action arises out of Plaintiff Nasir
Finnemen’s1 arrest at a Southeastern Pennsylvania Transportation
Authority (“SEPTA”) station, and subsequent prosecution. The
named defendants – who are employed by SEPTA or the City of
Philadelphia – have moved for summary judgment. For the reasons
that follow, the Court will grant in part and deny in part the
motions for summary judgment.

1

Plaintiff’s original complaint identified him as
“Nasir Finnerman,” but his current lawyer has clarified that his
last name is actually Finnemen. ECF No. 59.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
On April 4, 2013, Plaintiff Nasir Finnemen entered the

SEPTA station at Kensington and Allegheny Avenue. Finnemen Dep.
97:9-17, Sept. 24, 2016, ECF No. 67-3 [hereinafter Finnemen Dep.
I]. As he was going up the station’s escalator, he looked back
and saw a man that he thought was “suspicious,” due to the man’s
dark clothes, hood, and hat, as well as the fact that it was
roughly 11:15 or 11:20 p.m. Id. at 99:11-17. After Plaintiff
went through the turnstile and entered the platform, he looked
back again, and the man was “right behind” Plaintiff, on the
platform. Id. at 99:17-19. He was giving Plaintiff “strange
faces” and holding his right hand under his hoodie; Plaintiff
thought he was “acting like he was going to, you know, pull out
something.” Id. at 99:23-100:15. Plaintiff, who felt like he was
in “a dangerous situation,” looked to the side and “[saw] the
SEPTA door cracked open.” Id. at 100:18-20. Plaintiff chose to
enter the SEPTA booth, where he squatted behind the door,
telling the SEPTA operator in the booth – Defendant Melody
Campbell – “that there’s a guy out there.” Id. at 100:20-24.
Campbell told Plaintiff, “[C]ome on, he’s not worrying about
you,” so Plaintiff got up and returned to the platform. Id. at
100:23-25.
2

The facts are presented in the light most favorable to
Plaintiff, the nonmoving party.
2

Campbell, who maintains – contrary to Plaintiff’s
story – that Plaintiff attempted to rob and assault her when he
entered the booth, then called SEPTA’s Control Center to report
that she had just been assaulted. Campbell Dep. 75:16-76:11;
80:19-81:1, Oct. 17, 2016, ECF No. 62-1. The Control Center
responded that they were sending help, and Defendants SEPTA
Police Officers Caban and Boyd responded to the radio call. Id.
at 81:2-21.
As Plaintiff was standing on the platform, continuing
to wait for the train, Officer Caban arrived and spoke to
Campbell, who identified Plaintiff as the alleged assailant. Id.
at 82:15-23. Officer Caban then approached Plaintiff and told
him to turn around and put his hands on the wall. Finnemen Dep.
I at 101:6-9. Officer Caban handcuffed Plaintiff and began
“pushing [Plaintiff] down” to the station’s entrance – walking
at the officer’s normal pace, even though Plaintiff was injured
and walking with a cane. Id. at 101:7-11. Officer Caban then
searched Plaintiff, took him out of the station, put him in a
patrol car, and took him to a police station, where Plaintiff
remained for 24 hours. Id. at 101:12-17. Plaintiff was then
taken to the Curran-Fromhold Correctional Facility (“CFCF”),
where he remained for approximately six days, until his father
posted bail for him. Finnemen Dep. 67:8-12; 69:10-20, Oct. 10,
2016, ECF No. 67-4 [hereinafter Finnemen Dep. II].
3

Plaintiff was then charged with robbery, attempted
theft by unlawful taking, receiving stolen property, simple
assault, and recklessly endangering another person. SEPTA Defs.’
Mot. Summ. J. Ex. F, ECF No. 62-1. Plaintiff attended a
preliminary hearing on these charges, where Campbell testified
as a witness for the Commonwealth. Finnemen Dep. I 32:25-33:14.
Ultimately, the Philadelphia District Attorney’s Office dropped
the charges. Id. at 33:24-34:2.
Plaintiff filed a pro se complaint on April 7, 2015.
ECF No. 3. Eventually, he obtained a lawyer, and his claims went
through several rounds of pleadings and dismissal before
discovery began. Plaintiff’s remaining claims are: (1) malicious
prosecution, as to Campbell, through § 1983; (2) false arrest,
false imprisonment, excessive force, and malicious prosecution
as to Officers Caban and Boyd; (3) deliberate indifference to
the need for medical treatment, as to unknown and unnamed
Philadelphia Police Officers and employees of the Department of
Corrections; (4) malicious prosecution, as to Campbell, through
state tort law; (5) malicious prosecution, as to Detective
Michelle Yerkes, through state tort law; (6) malicious
prosecution, as to Officers Caban and Boyd, through state tort
law; and (7) assault and battery, as to Officers Caban and Boyd.
See Second Am. Compl., ECF No. 45.

4

On November 9, 2016, Campbell, Caban, and Boyd
(collectively, the “SEPTA Defendants”), as well as Yerkes, filed
motions for summary judgment. ECF Nos. 62, 63. Plaintiff did not
respond. The Court then scheduled a hearing on the motions for
July 5, 2017, ECF No. 66, and instructed that if Plaintiff
intended to oppose the motions with written submissions, he
should file those submissions by June 2, 2017, ECF No. 65.
Plaintiff did not file anything by June 2. Rather, on
June 20, Plaintiff filed a response to the SEPTA Defendants’
motion.3 ECF No. 67.
On June 30, Plaintiff filed a one-sentence response to
the Yerkes motion, stating that he does not oppose her motion
for summary judgment. ECF No. 68. The Court has reviewed the
motion on the merits and will grant Yerkes’s motion for summary
judgment because there is no genuine dispute as to any material
fact and Yerkes is entitled to judgment as a matter of law.4 Fed.
R. Civ. P. 56(a).
The SEPTA Defendants’ motion for summary judgment is
now ripe for disposition.
3

At the hearing on the motion, Plaintiff’s counsel
averred that his response was late due to his own medical
issues. The Court accepts this explanation and will consider the
response as if filed nunc pro tunc.
4

Yerkes is a Philadelphia Detective. Her motion argued,
correctly, that there is no record evidence supporting the
elements of malicious prosecution as to Yerkes.
5

II.

LEGAL STANDARD
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593
F.3d 265, 268 (3d Cir. 2010). While the moving party bears the
initial burden of showing the absence of a genuine issue of
material fact, meeting this obligation shifts the burden to the
nonmoving party, who must “set forth specific facts showing that

6

there is a genuine issue for trial.” Anderson, 477 U.S. at 250
(quoting Fed. R. Civ. P 56(e)).

III. DISCUSSION
A.

Malicious Prosecution Claims Against Campbell
Plaintiff brings claims of malicious prosecution

against Campbell under both § 1983 and state tort law.
Specifically, he says, Campbell “intentionally fabricated what
occurred in the SEPTA booth for the malicious purpose of having
plaintiff arrested and criminally prosecuted, upon her
irrational belief that plaintiff was a potential criminal merely
because he mistakenly entered the SEPTA booth.” Second Am.
Compl. ¶ 20.
To succeed on a claim for malicious prosecution under
§ 1983, a plaintiff must show that: “(1) the defendants
initiated a criminal proceeding; (2) the criminal proceeding
ended in plaintiff’s 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 deprivation of liberty consistent
with the concept of seizure as a consequence of a legal
proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d
Cir. 2003). To prove a claim for malicious prosecution under
Pennsylvania tort law, plaintiff must prove all but the fifth
7

element listed above. Merkle v. Upper Dublin Sch. Dist., 211
F.3d 782, 791 (3d Cir. 2000).
Campbell argues that Plaintiff’s claims must fail
because (1) she did not initiate the criminal proceedings
against Plaintiff, and (2) she did not act “maliciously or for a
purpose other than to bring Plaintiff to justice.” SEPTA Defs.’
Mem. Law at 4-7, ECF No. 62. These arguments fail.
First, Campbell points to Falat v. County of
Hunterdon, No. 12-6804, 2014 WL 6611493 (D.N.J. Nov. 21, 2014),
for the proposition that “an allegation that a defendant merely
provided information to prosecutors is insufficient to plead the
‘initiated criminal proceedings’ element” of a malicious
prosecution claim. Id. at *16. Campbell argues that, because all
she did is give information to police and prosecutors regarding
Plaintiff’s alleged crimes against her, she could not have
initiated criminal proceedings. But Campbell fails to note that
the Falat court went on to say that “providing information
regarding possible criminal activity – which is insufficient for
a claim of malicious prosecution – is distinguishable from
actively encouraging prosecution or misleading prosecutors,
which may state the ‘initiated’ element.” Id. (emphasis added)
(citing Griffiths v. CIGNA Corp., 988 F.2d 457, 464 (3d Cir.
1993)). That is, if Campbell actively misled officials regarding
Plaintiff’s conduct, then Plaintiff can prove that she initiated
8

the prosecution. And, of course, construing the disputed facts –
what happened inside the SEPTA booth – in the light most
favorable to Plaintiff, Campbell lied about Plaintiff’s actions
to the officers and during the preliminary hearing.
For similar reasons, there is a genuine dispute of
material fact regarding whether Campbell acted maliciously or
“for a purpose other than bringing the plaintiff to justice.”
Marasco, 318 F.3d at 521.
In this case, the parties tell two fully divergent
stories about what happened in the SEPTA booth. According to
Plaintiff, he entered the SEPTA booth and squatted behind the
door, telling the SEPTA operator in the booth – Defendant Melody
Campbell – “that there’s a guy out there.” Finnemen Dep. I
100:20-24. Campbell told Plaintiff, “[C]ome on, he’s not
worrying about you,” so Plaintiff got up and returned to the
platform. Id. at 100:23-25. He stated that he “wasn’t fighting
with anybody in there” and that at no point did he “reach or
grab for [her] bag.” Id. at 137:12-15; 140:8-11. Campbell, on
the other hand, testified that Plaintiff did not enter the booth
to seek shelter, and did not tell her that he feared for his
safety, but rather, that Plaintiff:
pushed me out of the way. He walked up to the window
and said, where is it, where is it. And I said, where
is what. And when he turned around, I was still
standing with the door open behind me. When he turned
around, I screamed really loud. And then he reached
9

over, tried to take my purse, and I don’t know how it
happened, but he and I started tussling with each
other. He tripped over the chair and he fell.
Campbell Dep. 74:25-77:19. Then, she says, she kicked Plaintiff
while he was lying on his back, id. at 77:16-24, punched him,
and eventually pushed him out of the booth, id. at 80:15-23.
Obviously, what happened in the booth is disputed. The
question, then, is whether this dispute is “genuine” and
“material,” such that it defeats Campbell’s motion for summary
judgment.
The first question is whether the disputed facts –
mostly, what occurred in the booth – are material. As the
Supreme Court has stated, “the substantive law will identify
which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Anderson, 477 U.S. at 248. In this case, then, does
the factual dispute over what happened in the booth bear on
whether, as a matter of law, Campbell “acted maliciously or for
a purpose other than bringing the plaintiff to justice”?
Marasco, 318 F.3d at 521.
The answer is yes. If Plaintiff’s story is true, then
Campbell’s story of yelling and physical fighting is necessarily
false, at least in part. And, as courts have held, false
10

testimony can create a reasonable inference of malicious intent
for the purposes of a claim of malicious prosecution. See, e.g.,
Vanderklok v. United States, No. 15-370, 2016 WL 4366976, at *12
(E.D. Pa. Aug. 16, 2016) (“‘Actual malice in the context of
malicious prosecution is defined as either ill will in the sense
of spite, lack of belief by the actor himself in the propriety
of the prosecution, or its use for an extraneous improper
purpose.’ Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988),
abrogated on other grounds, Albright v. Oliver, 510 U.S. 266
(1994). A jury could reasonably conclude that [the defendant]
acted with ‘ill will’ by falsely reporting to the police that
[the plaintiff] stated he could bring a bomb through airport
security undetected.”); Johnson v. Sch. Dist. of Phila., No. 064826, 2008 WL 3927381, at *9 (E.D. Pa. Aug. 21, 2008) (“While
there is no evidence in the record that directly indicates a
motive for Officer Hazzard’s alleged misconduct, Plaintiffs
assert that Officer Hazzard gave inaccurate and incomplete
testimony at Ms. Johnson’s preliminary hearing. If credited, a
jury could reasonably infer that Officer Hazzard’s supposedly
false testimony was evidence of a malicious intent.”); Telepo v.
Palmer Twp., No. 97-6053, 40 F. Supp. 2d 596, 610 (E.D. Pa.
1999) (“A person can be liable for malicious prosecution if he
‘fail[s] to disclose exculpatory evidence to prosecutors,
make[s] false or misleading reports to the prosecutor, omit[s]
11

material information from the reports, or otherwise interfere[s]
with the prosecutor’s ability to exercise independent judgment
in deciding whether to prosecute.’” (alterations in original)
(quoting Garcia v. Micewski, No. 97-5379, 1998 WL 547246, at *9
(E.D. Pa. Aug. 24, 1998))). In other words, if Campbell lied to
the SEPTA officers and at the preliminary hearing – as she did
if the facts are viewed in the light most favorable to
Plaintiff – a reasonable jury could infer that she acted with
malicious intent. Accordingly, the dispute over what occurred in
the booth is material to the substantive resolution of
Plaintiff’s claim of malicious prosecution.
This dispute is also genuine, because – on the record
presented at this stage – “a reasonable jury could return a
verdict for [Plaintiff,] the nonmoving party.” Anderson, 477
U.S. at 248. Specifically, under Federal Rule of Civil Procedure
56, “[a] party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1). Campbell points to her own
deposition testimony as evidence that she necessarily acted
without malicious intent. But she has failed to show, as she
12

must, that this testimony establishes the absence of a genuine
issue of material fact – because of Plaintiff’s deposition
testimony, and the reasonable inferences that can be drawn
therefrom. After all, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary judgment or
for a directed verdict.” Anderson, 477 U.S. at 255. Critically,
“[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. Under
Rule 56(c), deposition testimony – at least, where not proven
false5 – is such evidence, and so the disputed issue of what
actually happened inside Campbell’s SEPTA booth is a genuine
question that must be decided by a finder of fact at trial.
Accordingly, Campbell has failed to show that there is
no genuine issue of material fact regarding Plaintiff’s claims
of malicious prosecution.

5

For example, in this case, if Campbell had presented
additional evidence showing that her version of events is true,
and Plaintiff’s is false – such as, perhaps, a video recording
of the events inside the booth – she might have been able to
show that no reasonable jury could believe Plaintiff’s story. In
that case, there would be no “genuine” issue of fact. But
Campbell has not shown as much – she has argued only that the
Court should believe her version of events, and disbelieve
Plaintiff’s. This argument is insufficient to support a motion
for summary judgment, where the events are disputed.
13

Campbell is also not entitled to sovereign immunity on
the state law claim of malicious prosecution, as she contends.
Campbell argues that she, as a SEPTA employee, must receive
sovereign immunity for her actions – but she fails to show why,
or even argue that, her actions at issue were within the scope
of her employment, as is required for a successful assertion of
sovereign immunity. See, e.g., Kull v. Guisse, 81 A.3d 148, 154
(Pa. Commw. Ct. 2013) (“Generally, sovereign immunity protects
Commonwealth officials and employees acting within the scope of
their duties from civil liability.” (citing 1 Pa. Cons. Stat.
Ann. § 2310)). Where an individual acts with “actual fraud,
actual malice, or willful misconduct,” she is acting “outside
the scope of employment for purposes of sovereign immunity.”
Schell v. Guth, 88 A.3d 1053, 1070 (Pa. Commw. Ct. 2014).
Willful misconduct is “conduct whereby the actor desired to
bring about the result that followed or at least was aware that
it was substantially certain to follow, so that such desire can
be implied.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa.
1994) (quoting King v. Breach, 540 A.2d 976, 981 (Pa. Commw. Ct.
1988)). Accordingly, if Plaintiff’s version of events is true,
Campbell acted with willful misconduct and thus acted outside
the scope of her employment. Therefore, Campbell is not entitled
to sovereign immunity.

14

Accordingly, the Court will deny Campbell’s motion for
summary judgment as to the malicious prosecution claims against
her.
B.

§ 1983 Claims Against Caban and Boyd
Plaintiff claims that SEPTA Officers Caban and Boyd

violated his Fourteenth Amendment rights through false arrest,
false imprisonment, excessive force, and malicious prosecution.
1.

False Arrest

“To prevail on a false arrest claim under Section
1983, a plaintiff must demonstrate that the police lacked
probable cause to make the arrest.” Campeggio v. Upper
Pottsgrove Twp., No. 14-1286, 2014 WL 4435396, at *4 (E.D. Pa.
Sept. 8, 2014) (citing Groman v. Twp. of Manalapan, 47 F.3d 628,
634 (3d Cir. 1995)). The question is not whether the plaintiff
actually committed the crime, but simply “whether the arresting
officers had probable cause to believe the plaintiff committed
the offense.” Id. (citing Dowling v. City of Phila., 855 F.2d
136, 141 (3d Cir. 1988)). Probable cause exists “when the facts
and circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the
person to be arrested.” Orsatti v. New Jersey State Police, 71
F.3d 480, 483 (3d Cir. 1995).
15

Generally, “the question of probable cause in a
section 1983 damage suit is one for the jury.” Montgomery v. De
Simone, 159 F.3d 120, 124 (3d Cir. 1998). However, “a district
court may conclude ‘that probable cause did exist as a matter of
law if the evidence, viewed most favorably to Plaintiff,
reasonably would not support a contrary factual finding.’”
Marasco, 318 F.3d at 514 (quoting Sherwood v. Mulvihill, 113
F.3d 396, 401 (3d Cir. 1997)).
“The probable cause inquiry looks to the totality of
the circumstances; the standard does not require that officers
correctly resolve conflicting evidence or that their
determinations of credibility, were, in retrospect, accurate.”
Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir. 2005). An
officer is not obligated to conduct an independent investigation
to verify statements made by a credible eyewitness if those
statements provide him with probable cause to arrest. See
Merkle, 211 F.3d at 790 n.8; see also Potts v. City of Phila.,
224 F. Supp. 2d 919, 934 (E.D. Pa. 2002) (“A police officer,
after all, is not obligated 'to conduct a mini-trial' before
arresting a suspect.” (quoting Brodnicki v. City of Omaha, 75
F.3d 1261, 1264 (8th Cir. 1996))). Further, “[e]xculpatory
evidence does not eliminate probable cause simply because it
might prove useful to a jury weighing reasonable doubt.” Eckman
v. Lancaster City, 742 F. Supp. 2d 638, 651 (E.D. Pa. 2010)
16

(citing Steele v. City of Erie, 113 F. App’x 456, 459 (3d Cir.
2004)).
However, “[i]ndependent exculpatory evidence or
substantial evidence of the witness’s own unreliability that is
known by the arresting officers could outweigh [a positive
identification by a victim witness] such that probable cause
would not exist.” Wilson v. Russo, 212 F.3d 781, 790 (3d Cir.
2000). This is a fact-intensive and case-specific inquiry. See
id. Wilson provides the following examples of such a situation:
[I]f two identifying witnesses had told the officer
that the robber was 7’, and the officer knew that the
person in the photograph was 5’, the positive
identification would not be enough. Likewise, an
otherwise credible victim identification would not
provide
probable
cause
if
police
officers
contemporaneously possessed reliable DNA evidence
which determined conclusively that the accused could
not have committed the crime. Or, if Druce had,
equally firmly, picked another person from the photo
array, Braverman’s identification might not have been
sufficient
for
Russo
to
conclude
that
Wilson
“probably” committed the crime.
Id.
The facts of this case do not rise to the level of the
facts proposed in Wilson. Defendants assert that Officers Caban
and Boyd had probable cause based on (1) the information that
Officer Caban had at the time of the arrest and (2) Ms.
Campbell’s eyewitness identification of Plaintiff. In turn,
Plaintiff argues that Office Caban lacked probable cause due to
exculpatory evidence, which he failed to uncover because he did
17

not conduct a reasonable investigation before arresting
Plaintiff and taking him away. Specifically, Plaintiff alleges
that Officer Caban should have doubted his guilt because when
the Officers arrived on the scene, Plaintiff was merely standing
on the train platform with his cane in hand and had not
attempted to flee, that Plaintiff walked with a limp, and that
Plaintiff had no fruits of a crime in his possession.
Viewing these allegations in the light most favorable
to Plaintiff, they do support Plaintiff’s claim that he was not
guilty of the offenses for which he was arrested and ultimately
charged. However, they do not establish that Officers Caban and
Boyd lacked probable cause to arrest Plaintiff. Most notably,
the facts alleged by Plaintiff do not negate that a reasonable
officer in the situation Caban and Boyd faced – having received
an explicit report of a crime from Defendant Campbell – could
believe that Plaintiff had indeed committed a crime. The
evidence Plaintiff discusses is not incontrovertibly
exculpatory, but rather is evidence that is “subject to a
variety of interpretations.” Kelly v. Jones, 148 F. Supp. 3d
395, 403 (E.D. Pa. 2015) (citing Romero v. Fay, 45 F.3d 1472,
1477 (10th Cir. 1995)). For example, though the fact that
Plaintiff did not flee the train platform does perhaps suggest
that he did not attempt to rob Defendant Campbell in the SEPTA
booth, an unintelligent or particularly cocky would-be robber
18

might not feel a need to flee after a failed robbery, where he
would have possessed no fruits of the crime. Or perhaps such a
criminal might have expected a train to arrive any minute,
allowing him to flee the scene more swiftly than he could have
on his own two feet. And, importantly, “[t]he Constitution does
not guarantee that only the guilty will be arrested.” Baker v.
McCollan, 443 U.S. 137, 145 (1979). Accordingly, the probable
cause inquiry does not ask whether it is true or even likely
that Plaintiff was guilty, but whether a reasonable officer in
Boyd and Caban’s position could have believed that he was. Here,
because of Campbell’s statement, and notwithstanding potentially
exculpatory evidence that was not unassailable, such an officer
could have reasonably held that belief.
Accordingly, the Court will grant the motion for
summary judgment as to Plaintiff’s claim of false arrest.
2.

False Imprisonment

“To state a claim for false imprisonment, a plaintiff
must establish: (1) that [he] was detained; and (2) that the
detention was unlawful.” James v. City of Wilkes-Barre, 700 F.3d
675, 682-83 (3d Cir. 2012). “A false imprisonment claim under
§ 1983 which is based on an arrest made without probable
cause . . . is grounded in the Fourth Amendment’s guarantee
against unreasonable seizures.” Id. at 683.

19

Here, as established above, Officers Boyd and Caban
had probable cause to arrest Plaintiff. Accordingly, Plaintiff
has not established that his detention was unlawful, and the
Court will grant the motion for summary judgment as to
Plaintiff’s claim of false imprisonment.
3.

Excessive Force

When an “excessive force claim arises in the context
of an arrest or investigatory stop of a free citizen, it is most
properly characterized as one invoking the protections of the
Fourth Amendment, which guarantees citizens the right ‘to be
secure in their persons . . . against unreasonable . . .
seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394
(1989). Such a claim is analyzed under an “objective
reasonableness” standard. Id. at 388. This standard “requires
careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396.
Excessive force, like probable cause, is usually a question of
fact, but can be decided before trial if an officer’s use of
force was objectively reasonable, even viewing the facts in

20

favor of the plaintiff. See Abraham v. Raso, 183 F.3d 279, 28990 (3d Cir. 1999).
Here, there are two categories of facts: the facts
involving allegations actually raised in the Second Amended
Complaint, and the facts involving allegations raised for the
first time in Plaintiff’s response to the motion for summary
judgment.
In the Second Amended Complaint, the only factual
allegation in support of Plaintiff’s claim of excessive force is
that Caban and Boyd “forcefully arrested plaintiff by
intentionally placing the handcuffs on him very tightly,” ¶ 18,
and that his handcuffing caused him “extreme pain in his wrists
and shoulders,” ¶ 22. Without more, Plaintiff has not offered
any reason to believe that his handcuffing was unreasonable,
considering that Caban and Boyd had probable cause to believe
that he had attempted to forcibly rob Defendant Campbell. See
Saucier v. Katz, 533 U.S. 194, 205 (2001) (“If an officer
reasonably, but mistakenly, believed that a suspect was likely
to fight back, for instance, the officer would be justified in
using more force than in fact was needed.”). Nor has Plaintiff
contended that he offered any reason for the defendants to
believe that he had been in pain, which could support a claim of
excessive force for tight handcuffs. See Kopec v. Tate, 361 F.3d
772, 780 (3d Cir. 2004) (“[A] viable excessive force claim
21

requires that the officer or officers had either constructive or
actual notice that the force applied by the handcuffs was
excessive under the circumstances, yet the officer or officers
failed to respond to such notice in a reasonable manner.”).
Plaintiff also argues, in his response to the motion
for summary judgment, that the officers used excessive force by
shoving Plaintiff’s crutches into his chest and by forcing him
off the platform quickly, despite Plaintiff’s injuries and
mobility issues. Setting aside the fact that these allegations
were not raised in the Second Amended Complaint, Plaintiff has
still failed to show that there are genuine issues of material
fact as to these allegations. He points to no portion of his
deposition testimony, or any other evidence, supporting these
claims. Indeed, Plaintiff testified that the officers did not
push, shove, hit, kick, or insult Plaintiff, see Finnemen Dep. I
at 145:1-148:10; that Officer Caban placed him in the police car
“gently,” id. at 149:15-24; and that Plaintiff never asked for a
break to deal with his pain level and does not remember asking
Officer Caban to slow down or stop, id. at 154:16-155:1.
Accordingly, the Court will grant the motion for
summary judgment as to Plaintiff’s claim of excessive force.

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4.

Malicious Prosecution

Again, to bring a claim of malicious prosecution under
§ 1983, a plaintiff must show that: “(1) the defendants
initiated a criminal proceeding; (2) the criminal proceeding
ended in plaintiff’s 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 deprivation of liberty consistent
with the concept of seizure as a consequence of a legal
proceeding.” Marasco, 318 F.3d at 521.
As discussed above, Officers Caban and Boyd had
probable cause to arrest Plaintiff. Therefore, the Court will
grant Defendants’ motion for summary judgment as to the § 1983
claim of malicious prosecution as to Caban and Boyd.
C.

State Tort Claims Against Caban and Boyd
Plaintiff also brings two state tort law claims

against Officers Caban and Boyd: (1) malicious prosecution and
(2) assault and battery. Defendants argue that these claims fail
not only on the merits, but also because they are barred by
Pennsylvania’s sovereign immunity laws.
Plaintiff argues only that Officer Caban’s conduct
does not fall within the scope of his duties, and thus is not
entitled to sovereign immunity, because Officer Caban acted
without probable cause. Not only is this not responsive to the
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matter of sovereign immunity, but as discussed above, Officer
Caban did have probable cause.
Accordingly, the Officers are entitled to the benefits
of sovereign immunity, and the Court will grant their motion for
summary judgment as to Plaintiff’s state law claims against
them.
IV.

CONCLUSION
For the foregoing reasons, the Court will grant

Defendants’ Motions for Summary Judgment as to all claims except
those against Defendant Campbell. An appropriate Order follows.

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