PRICE v. THE CITY OF PHILADELPHIA et al

Filing 29

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/07/2017. 03/07/2017 ENTERED AND COPIES MAILED TO PRO SE LITIGANT AND E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CLYDE PRICE,
Plaintiff,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

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CIVIL ACTION
NO. 15-1909

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

March 7, 2017

Table of Contents
I.

INTRODUCTION............................................ 2

II.

FACTUAL BACKGROUND...................................... 3

III. PROCEDURAL HISTORY...................................... 6
IV.

LEGAL STANDARD.......................................... 9

V.

DISCUSSION ............................................ 11
A.

Plaintiff’s 42 U.S.C. § 1983 Claims............... 14
1.

Count One: Retaliation....................... 15

2.

Count Two: Excessive Force................... 21
a.
b.

3.

Officer Simmons......................... 24
Officer Little.......................... 29

Count Three: Unreasonable Search and Seizure. 31
a.

Seizure................................. 34

b.

Search.................................. 40

4.
B.

Count Four: Equal Protection................. 42

Plaintiff’s State Law Claims...................... 47
1.
2.

Count Seven: Abuse of Process................ 53

3.
C.

Counts Five and Six: False Arrest and False
Imprisonment................................. 48

Count Eight: Malicious Prosecution........... 56

Punitive Damages.................................. 57

VI.

CONCLUSION............................................. 59

I.

INTRODUCTION
In this action, Plaintiff Clyde Price (“Plaintiff”),

proceeding pro se, alleges that Philadelphia Police Officers
Tyrone Simmons (“Officer Simmons”) and James Little (“Officer
Little”) wrongfully stopped, searched, and arrested him, using
excessive force, in retaliation for Plaintiff’s previous filing
of a lawsuit against the Philadelphia Police Department.
Plaintiff brings claims under 42 U.S.C. § 1983 and Pennsylvania
state law against the City of Philadelphia (“the City”), Officer
Simmons, Officer Little, and former Philadelphia Police
Commissioner Charles Ramsey (“Former Commissioner Ramsey”)
(“collectively, “Defendants”).

After the Court granted

Defendants’ motion to dismiss as to the City, but denied the
motion as to Officer Simmons, Officer Little, and Former
Commissioner Ramsey, Defendants deposed Plaintiff.

The

remaining Defendants now move for summary judgment pursuant to
2

Rule 56 of the Federal Rules of Civil Procedure.

Plaintiff has

also filed a motion to strike Defendants’ motion for summary
judgment.
For the reasons discussed below, the Court will grant
in part and deny in part Defendants’ motion for summary
judgment.

The Court will grant Defendants’ motion for summary

judgment with respect to all of Plaintiff’s claims against
Officer Little and Officer Simmons, with the exception of
Plaintiff’s claims against Officer Simmons under 42 U.S.C.
§ 1983 for (1) excessive force and (2) unreasonable search and
seizure in violation of the Fourth Amendment.

The Court will

also deny Plaintiff’s motion to strike Defendants’ motion for
summary judgment.
II.

FACTUAL BACKGROUND1
The facts of this case are relatively straightforward.

On April 13, 2013, Plaintiff became involved in an argument with
a female acquaintance near the corner of Lindenwood and
Jefferson Streets in Philadelphia, Pennsylvania.

Price Dep.

13:14-16, 16:1-2, 17:7-24, Nov. 6, 2015, Defs.’ Mot. Summ. J.
Ex. A, ECF No. 19-1; Simmons Decl. ¶¶ 3-5, Defs.’ Mot. Summ. J.
Ex. B, ECF No. 19-2.

Officers Simmons and Little, on patrol in

1

The facts are presented in the light most favorable to
Plaintiff, the nonmoving party. See Frank C. Pollara Grp., LLC
v. Ocean View Inv. Holding, LLC, 784 F.3d 177, 179 n.1 (3d Cir.
2015).
3

the area, observed the dispute.

Price Dep. 23:2-10, Simmons

Decl. ¶¶ 5-7.
According to Plaintiff, he and his acquaintance yelled
at each other, and she moved her hands in front of Plaintiff’s
face.

Price Dep. 22:20-23:10.

While Officer Simmons refers to

the interaction between Plaintiff and his acquaintance as “an
altercation,” and Officer Little claims that he “observed the
female grabbing [Plaintiff] by his collar,” it is undisputed
that Plaintiff did not touch his acquaintance during the course
of their argument.

Simmons Decl. ¶ 5; Little Decl. ¶ 6, Defs.’

Mot. Summ. J. Ex. C, ECF No. 19-3.
After observing the argument, Officer Simmons and
Officer Little approached Plaintiff and his acquaintance.
Dep. 24:2-10; Simmons Decl. ¶¶ 5-7.

Price

At some point during their

approach, Plaintiff started moving away from the officers.2

At

that time, Officer Simmons grabbed Plaintiff and placed him in
handcuffs.

Price Dep. 24:7-8, 25:5-6; Simmons Decl. ¶ 9.

Plaintiff testified that after Officer Simmons
approached Plaintiff and before he placed Plaintiff in
handcuffs, he “threw” Plaintiff against the police vehicle with

2

Officer Simmons states that Plaintiff “attempted to
push past [the officers] and run from the scene.” Simmons Decl.
¶ 7. In contrast, Plaintiff testified that he did not run away;
he merely walked. Price Dep. 27:2-15. He explained that he
walked away because he has had bad experiences with the police
in the past. Id. at 27:23-28:7.
4

“force, but not with that much force.”
6, 28:24-29:7.

Price Dep. 24:7-8, 25:5-

Officer Simmons does not make any statement

regarding his physical interaction with Plaintiff, and Officer
Little states that he walked away to speak with Plaintiff’s
acquaintance after Officer Simmons placed Plaintiff in
handcuffs.

See Little Decl. ¶¶ 10-11.

The parties do not

dispute that after Officer Simmons placed Plaintiff in
handcuffs, he searched Plaintiff and located a pocketknife and
several bags containing a substance that was later discovered to
be crack cocaine.3
Decl. ¶¶ 12-20.
arrest.

Price Dep. 25:5-12, 42:11-43:19; Simmons

Officer Simmons then placed Plaintiff under

Simmons Decl. ¶ 18.
Plaintiff alleges that he was in custody from April

13, 2013, until August 8, 2013, at which time his motion to
suppress the evidence gathered during Officer Simmons’ search
was granted and he was released from prison.
ECF No. 11.

Am. Compl. ¶ 13,

At his deposition, Plaintiff testified that the

3

Plaintiff testified that he was wearing the knife on
his belt. Price Dep. 26:12-18. Officer Simmons states that he
“observed what appeared to be a knife protruding out of his left
inside jacket pocket.” Simmons Decl. ¶ 12. Officer Simmons
contends that he decided to conduct a “safety frisk” of
Plaintiff on the basis of (1) the “altercation” between
Plaintiff and his acquaintance, (2) Plaintiff’s “pressing
himself up against the side of the vehicle” in response to
Officer Simmons’ inquiry as to whether Plaintiff had anything
illegal on him, (3) Plaintiff’s “attempt to run from the scene,”
and (4) Officer Simmons’ observation of a knife. Id. at ¶¶ 1314.
5

evidence was suppressed following a hearing before a magistrate
judge, and that all charges against him were ultimately
withdrawn.

Price Dep. 38:20-39:12.

Plaintiff believes that the

evidence was suppressed on the basis of Officer Simmons’ lack of
probable cause for the search and failure to inform Plaintiff of
his Miranda rights prior to questioning him.4

Id. at 41:2-6.

III. PROCEDURAL HISTORY
Plaintiff filed this action on April 10, 2015,
initially bringing claims against the City, the Philadelphia
Police Department (the “PPD”), and a John Doe police officer.
ECF No. 1.

Plaintiff’s complaint was deemed filed on April 17,

2015, after the Court granted him in forma pauperis status.
Nos. 2, 3.

ECF

The Court immediately dismissed Plaintiff’s claims

against the PPD as legally baseless, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), after finding that the PPD is not a separate
legal entity from the City subject to suit under 42 U.S.C.
§ 1983.

ECF No. 2.
On June 30, 2015, the City answered Plaintiff’s

complaint, asserting affirmative defenses of (1) failure to
state a claim upon which relief can be granted and (2) sovereign
4

Officer Simmons and Little state that they filled out
paperwork in connection with the arrest, but were otherwise not
involved in the decision of whether to charge Plaintiff with any
crimes, and had no conversations or communication with any
district attorney regarding Plaintiff’s charges. Simmons Decl.
¶¶ 21-24; Little Decl. ¶¶ 18-21.
6

immunity under Pennsylvania’s Political Subdivision Tort Claims
Act, 42 Pa. Const. Stat. §§ 8541-42.

ECF No. 6.

The City then

filed a motion for judgment on the pleadings, ECF No. 9, which
Plaintiff did not oppose.5
On August 28, 2015, following a hearing, the Court
dismissed Plaintiff’s Complaint with prejudice as to the City,
and without prejudice as to the individual John Doe police
officer.

ECF No. 10.

The Court also (1) granted Plaintiff

leave to file an amended complaint naming Officer Simmons as a
defendant; (2) granted Defendant leave to take Plaintiff’s
deposition following the filing of the amended complaint; and
(3) ordered Defendant to file a motion for summary judgment
following the deposition.

Id.

Plaintiff filed his Amended Complaint on September 21,
2015, adding Former Commissioner Ramsey and Officers Simmons and
Little as defendants, and reasserting claims against the City.
ECF No. 11.

In his Amended Complaint, Plaintiff alleges that,

prior to the April 13, 2013, incident, he had filed a previous
lawsuit against the 19th District of the Philadelphia Police
Department.

Id. at ¶ 15.

He alleges that Officers Simmons and

Little stopped, searched, and arrested him during the incident

5

The Court did not address the motion for judgment on
the pleadings, which was rendered moot by the Court’s later
order dismissing Plaintiff’s initial complaint and ordering
Plaintiff to file an amended complaint. See ECF No. 10.
7

at issue in this case in retaliation for his filing of the
previous lawsuit.

Id. at ¶¶ 11-12, 15.

Plaintiff asserts claims under 42 U.S.C. § 1983 and
Pennsylvania state law for (1) retaliation; (2) excessive force;
(3) unreasonable search and seizure; (4) violation of equal
protection rights; (5) false arrest; (6) false imprisonment;
(7) abuse of process; (8) malicious prosecution; (9) intentional
infliction of emotional distress; (10) respondeat superior
liability as to the City and Former Commissioner Ramsey;
(11) supervisory liability as to the City and Former
Commissioner Ramsey; and (12) violation of Plaintiff’s Miranda
rights.

Id.

Plaintiff seeks a declaratory judgment that

Defendants’ actions violated his rights, $500,000 in
compensatory damages, $500,000 in punitive damages, and
reasonable costs and fees.

Id.

Rather than following the Court’s instruction to take
Plaintiff’s deposition, on October 6, 2015, Defendants moved to
dismiss and/or strike Plaintiff’s Amended Complaint, ECF No. 12,
which Plaintiff opposed, ECF No. 13.

The Court granted

Defendants’ motion to dismiss as to Plaintiff’s claims against
the City, but denied the motion with respect to the other
Defendants.

ECF No. 17.

The Court again instructed Defendants

to file a motion for summary judgment after taking Plaintiff’s
deposition.

Id.
8

The remaining Defendants took Plaintiff’s deposition
in November 2015, and they filed a motion for summary judgment
with respect to all claims asserted against them on February 8,
2016.

ECF No. 19.

Following a telephone conference with the

parties, the Court stayed Plaintiff’s claims against Former
Commissioner Ramsey pending a ruling on Defendants’ motion for
summary judgment as to the claims against Officers Simmons and
Little.

ECF No. 20.

The Court explained that, because

Plaintiff’s claims against Former Commissioner Ramsey are based
on a theory of supervisory liability for the acts of Officers
Simmons and Little, if Plaintiff’s claims against the officers
do not survive summary judgment, there is no need for the Court
to consider Plaintiff’s claims against Ramsey.

Id.

Plaintiff filed a response in opposition to
Defendants’ motion for summary judgment, ECF No. 22, as well as
a separate “Motion to Strike and or Deny Defendant’s Motion for
Summary Judgment,” ECF No. 23.

Defendants’ motion for summary

judgment is now ripe for disposition.
IV.

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

9

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 suit under the governing law,”
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 views 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.”
2010).

Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir.
In short, the essential question is “whether the

evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”

Anderson, 477 U.S. at

251-52.
A document filed pro se is to be “liberally construed”
and “a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
10

In

addition, when considering a motion in a pro se plaintiff’s
proceedings, a court must “apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
name.”

Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48

(3d Cir. 1999).

However, on a motion for summary judgment, “a

pro se plaintiff is not relieved of his obligation under Rule 56
to point to competent evidence in the record that is capable of
refuting a defendant’s motion for summary judgment.”

Ray v.

Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, at *3 (E.D. Pa. May
10, 2007).

“[M]erely because a non-moving party is proceeding

pro se does not relieve him of the obligation under Rule 56(e)
to produce evidence that raises a genuine issue of material
fact.”

Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 408

(E.D. Pa. 2000).6
V.

DISCUSSION
In their motion for summary judgment, Defendants first

argue that all of Plaintiff’s federal claims against Officer
6

Given the sophistication of the submissions by
Plaintiff, including the selection of claims and the extensive
and appropriate citations to case law, it seems unlikely that
Plaintiff, who is not a lawyer or someone with a legal
background, would have drafted these submissions. Rather, it
appears the written submissions have been prepared by, or with
substantial assistance from, a “ghostwriter.” This kind of
situation, where Plaintiff is proceeding pro se in theory, but
has the advice of counsel in fact, places the Court in a
difficult position with respect to the requirement to liberally
construe Plaintiff’s pro se submissions. Regardless, in this
case, the complaint will be liberally construed.
11

Little and Former Commissioner Ramsey fail as a matter of law
because neither of those Defendants participated in the alleged
wrongs, as required for a claim brought pursuant to 42 U.S.C.
§ 1983.

See Defs.’ Mem. Law Support Mot. Summ. J., ECF No. 19,

8-10 [hereinafter Defs.’ Mem.].

Next, Defendants argue that

Plaintiff fails to demonstrate a genuine issue of material fact
with respect to every one of his claims.

See id. at 10-27.

Defendants further argue that Plaintiff’s federal claims against
Officers Simmons and Little are barred by the doctrine of
qualified immunity, and that Plaintiff’s state law claims are
barred by the Pennsylvania Tort Claims Act.

See id. at 27-30.

Finally, Defendants argue that Plaintiff is not entitled to
punitive damages.

See id. at 30.

In response, Plaintiff argues that, with the exception
of his Miranda claim and his claim for intentional infliction of
emotional distress, both of which he concedes are not viable,
there are genuine issues of material fact with respect to each
of his federal and state claims.7

See Pl.’s Mem., ECF No. 22.

He also argues that Defendants are not entitled to qualified
immunity because his constitutional rights were clearly

7

As Plaintiff concedes to the dismissal of Counts Nine
and Twelve of the Amended Complaint, Plaintiff’s Miranda and
intentional infliction of emotional distress claims, the Court
will grant Defendants’ motion for summary judgment with respect
to those claims.
12

established, id. at 22-23, and that he is entitled to punitive
damages, id. at 15-17.
Plaintiff also filed a separate motion to strike
and/or deny Defendants’ motion for summary judgment on the basis
that Defendants failed to file a separate statement of
undisputed material facts, which Plaintiff avers is required
under the Local Rules.

Pl.’s Mot. to Strike, ECF No. 23.

As

neither the Local Rules of Civil Procedure nor this Court’s
Outline of Pretrial and Trial Procedures requires a party moving
for summary judgment to submit a separate statement of
undisputed material facts, the Court will deny Plaintiff’s
motion to strike.8

8

Plaintiff cites Equipment Finance, LLC v. Hutchison,
No. 09-1964, 2010 WL 3791481 (E.D. Pa. Sept. 24, 2010), in
support of his motion to strike. Pl.’s Mot. to Strike at 3. In
Equipment Finance, Judge Gardner denied the defendants’ motion
for summary judgment because they failed to adhere to Judge
Gardner’s Rule 16 Status Conference Order, which required any
party filing a motion for summary judgment to file “a separate
short concise statement, in numbered paragraphs, of the material
facts about which the moving party contends there is no genuine
dispute.” Id. at *5. Judge Gardner noted that several district
courts within the Third Circuit impose such a requirement by
local rule, including the United States District Courts for the
Middle District of Pennsylvania, the Western District of
Pennsylvania, the District of New Jersey, and the Virgin Islands
of the United States. Id. at *5 n.10. However, the Local Rules
of United States District Court for the Eastern District of
Pennsylvania do not include such a requirement. See Local R.
Civ. P. 56.1. Defendants’ inclusion of a statement of facts in
their memorandum of law in support of their motion for summary
judgment is sufficient for this Court to evaluate whether or not
Defendants have shown that there are no genuine issues of
13

A.

Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff brings claims against Officers Simmons and

Little under 42 U.S.C. § 1983 for (1) retaliation (Count One);
(2) excessive force in violation of the Fourth Amendment (Count
Two); (3) unreasonable search and seizure in violation of the
Fourth Amendment (Count Three); (4) violation of the Fourteenth
Amendment’s Equal Protection Clause (Count Four); and (5) a
Miranda violation (Count Twelve).9

Am. Compl. ¶¶ 18-25, 40.

Section 1983 provides a civil remedy for the
“deprivation of any rights, privileges, or immunities secured by
the Constitution and laws.”

42 U.S.C. § 1983.

“Section 1983

does not by itself confer substantive rights, but instead
provides a remedy for redress when a constitutionally protected
right has been violated.”

Goff v. Kutztown Univ., 63 F. Supp.

3d 475, 480 (E.D. Pa. 2014) (citing Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985)).
With respect to each of Plaintiff’s § 1983 claims,
Defendants argue that Plaintiff has failed to establish a
violation of a constitutional right as a matter of law.
Defs.’ Mem. at 10-14, 20-24, 26-27.

See

Defendants further argue

material fact, as they are required to do under Federal Rule of
Civil Procedure 56.
9

In Count Eleven, Plaintiff brings a claim for
supervisory liability against Former Commissioner Ramsey, id. at
¶¶ 38-39, which, as previously mentioned, the Court has stayed,
see ECF No. 20.
14

that, to the extent any issue of material fact exists with
respect to the violation of Plaintiff’s constitutional rights,
qualified immunity protects Officers Simmons and Little from
liability.

See id. at 27-28.

Defendants also argue that

Plaintiff’s federal claims against Officer Little and Former
Commissioner Ramsey fail because neither of them participated in
the alleged wrongdoings.

Id. at 8-10.

For the reasons discussed below, all of Plaintiff’s
claims against Officers Simmons and Little under § 1983 fail as
a matter of law, with the exception of Plaintiff’s claims
against Officer Simmons for excessive force and unreasonable
search and seizure in violation of the Fourth Amendment.
1.

Count One: Retaliation

Count One of Plaintiff’s complaint alleges that
Officers Simmons and Little violated Plaintiff’s right to be
free from retaliation for protected First Amendment conduct.
Am. Compl. ¶ 19.

Specifically, Plaintiff alleges that Officers

Simmons and Little arrested and detained him in retaliation for
filing a previous lawsuit against other police officers in their
district.

Id.
To prevail on a First Amendment retaliation claim, a

plaintiff must prove “(1) constitutionally protected conduct,
(2) retaliatory action sufficient to deter a person of ordinary

15

firmness from exercising his constitutional rights, and (3) a
causal link between the constitutionally protected conduct and
the retaliatory action.”

Thomas v. Indep. Twp., 463 F.3d 285,

296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003)).
Defendants do not appear to dispute that Plaintiff’s
filing of his previous civil action is protected First Amendment
conduct.10

Instead, Defendants argue that Plaintiff’s

retaliation claim fails as a matter of law because (1) Plaintiff
has not demonstrated that criminal charges were pressed against
him without probable cause; and (2) Plaintiff cannot prove that
Officers Simmons and Little were aware of his previous lawsuit
or that it motivated their actions.

Defs.’ Mem. at 20-22.

In

response, Plaintiff argues that there is a factual dispute
regarding causation because (1) Plaintiff was treated
differently from a similarly situated person, the woman with
whom he had an argument; (2) the charges filed against Plaintiff
were eventually dropped; and (3) Plaintiff settled a previous
lawsuit for similar conduct.

Pl.'s Mem. at 19-21.

10

Indeed, it is axiomatic that the filing of a lawsuit
is protected conduct under the First Amendment. See Anderson v.
Davila, 125 F.3d 148, 161 (3d Cir. 1997) (finding that
plaintiff’s filing of an EEOC complaint and employment
discrimination suit constituted protected activity for the
purposes of a retaliation claim, because “[t]he Supreme Court
has consistently held that an individual’s constitutional right
of access to court is protected by the First Amendment’s clause
granting the right to petition the government for grievances.”).
16

In support of their first argument, Defendants contend
that “when the alleged retaliation is a criminal prosecution,
the plaintiff must also demonstrate that the underlying criminal
charges were pressed without probable cause.”

Defs.’ Mem. at

20-21 (citing Hartman v. Moore, 547 U.S. 250, 265-66 (2006)).
Because, Defendants argue, Officer Simmons had probable cause to
arrest Plaintiff, Plaintiff cannot bring a retaliation claim
based on the arrest.

Id. at 21.

In Hartman, the Supreme Court held that the absence of
probable cause “must be pleaded and proven” for a plaintiff to
prevail on “a claim that prosecution was induced by an official
bent on retaliation” in an action brought under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).11

547 U.S. at 265-66.

Defendants are correct that

Officer Simmons indisputably had probable cause to arrest
Plaintiff, as Plaintiff concedes that the arrest occurred after
Officer Simmons located drugs on Plaintiff’s person.
Dep.

43:16-19.

See Price

Here, however, unlike the plaintiff in Hartman,

Plaintiff alleges that his arrest was the retaliatory action,
not his prosecution.

Am. Compl. ¶ 19 (alleging that “this

arrest was provoked by [retaliation]”).
itself bar Plaintiff’s claim.

Thus, Hartman does not

Further, in Reichle v. Howards,

11

“[A] Bivens action is the federal analog to suits
brought against state officials under . . . 42 U.S.C. § 1983.”
Hartman, 547 U.S. at 254 n.2.
17

566 U.S. 658 (2012), the Supreme Court explicitly declined to
extend Hartman’s probable cause rule to retaliatory arrests, as
opposed to retaliatory prosecutions, see id. at 2096, and it is
unclear whether Hartman applies to retaliatory arrests in this
Circuit.12
In any event, the Court need not decide whether to
apply the Hartman rule to a retaliatory arrest in this case,
because Plaintiff’s claim fails for the separate reason that
Plaintiff has not established a causal connection between the
filing of his lawsuit and the allegedly retaliatory arrest, as
required to prevail on a First Amendment retaliation claim.
Plaintiff has not presented any facts, either in his Amended
Complaint or at his deposition, suggesting that either Officer
Simmons or Officer Little was aware of his prior action against
the Philadelphia Police Department.

12

The Third Circuit has

The Third Circuit has not yet decided whether Hartman
applies to retaliatory arrests. See Primrose v. Mellot, 541
Fed. App’x 177, 180 (3d Cir. 2013) (non-precedential) (“We have
not decided whether the logic of Hartman applies to retaliatory
arrest claims. . . .”). Defendants cite Favata v. Siedel, 511
Fed. App’x 155 (3d Cir. 2013) (non-precedential), in which the
Third Circuit applied the Hartman rule where the allegedly
retaliatory action was a citation issued by a police officer.
Id. at 158-59. Defendants also cite Albert v. Weaver, No. 052380, 2007 WL 2343830, at *6-7 (M.D. Pa. Aug. 15, 2007), which
held that Hartman applied to a claim based on a police officer’s
issuance of a citation. Defs.’ Mem. at 20-21. The instant
action is distinguishable from Favata and Albert because it
involves a retaliatory arrest, not the issuance of a citation and in any event, neither decision is binding on this Court.
18

generally required a plaintiff to establish that the defendant
is aware of the protected activity in order to prevail on a
First Amendment retaliation claim.

See Gorum v. Sessoms, 561

F.3d 179, 188 (3d Cir. 2009) (citing Ambrose v. Twp. of
Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (explaining that
“[i]t is only intuitive that for protected conduct to be a
substantial or motivating factor in a decision, the
decisionmakers must be aware of the protected conduct”)).

Thus,

Plaintiff’s failure to establish Officer Simmons’ and Officer
Little’s awareness of his constitutionally protected conduct
itself precludes a finding of a causal connection.
Further, to establish a causal connection, Plaintiff
must “prove either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with
timing.”
2007).

Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
Plaintiff has not produced either type of evidence.
Plaintiff’s complaint does not contain any allegations

relating to the timing of the filing of his lawsuit against the
Philadelphia Police Department, with the exception of
Plaintiff’s conclusory statement that “causation . . . can be
shown through . . . the temporal proximity of arrest.”
Compl. ¶ 19.

Am.

However, at his deposition, Plaintiff stated that

he filed the lawsuit in 2011.

Price Dep. 10:12-14.
19

The

allegedly retaliatory action took place on April 13, 2013.
at 13:12-16.

Id.

Based on these facts, at least sixteen months

elapsed between the protected activity and the allegedly
retaliatory action.

That time period is simply too long to be

“an unusually suggestive temporal proximity” that creates an
inference of causation.

See, e.g., Marra v. Phila. Hous. Auth.,

497 F.3d 286, 303 n.14 (3d Cir. 2007) (noting it is “undoubtedly
correct” that a nine-month time period between protected
activity and alleged retaliation, standing alone, is not
sufficient to create an inference of causation); Estate of Smith
v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (“[W]e have held
that such an inference could be drawn where two days passed
between the protected activity and the alleged retaliation, but
not where 19 months had elapsed.” (citations omitted)).
In the absence of an “unusually suggestive” temporal
proximity, Plaintiff must establish a “pattern of antagonism
coupled with timing,” which he has not done.
F.3d at 267.

DeFlaminis, 480

Plaintiff stated at his deposition that he has had

“incidents where [he was] pulled over by police in the same
district.”

Price Dep. 12:16-13:6.

However, Plaintiff claimed

that the officers involved in those incidents made comments
about his previous conviction for assault, not his previous
lawsuit against the Philadelphia Police Department, which he
alleges motivated Officer Simmons’ and Little’s actions.
20

See

id.

Plaintiff does not allege any other antagonistic events,

and in any case, Plaintiff does not allege that Officers Simmons
or Little, specifically, had ever interacted with him at all
aside from the day in question.
Based on these facts, there is simply no evidence in
the record from which a reasonable juror could conclude that
there exists a causal link between Plaintiff’s filing of his
lawsuit against the Philadelphia Police Department in 2011 and
the incident with Officers Simmons and Little on April 13, 2013.
Accordingly, the Court will grant Defendants’ motion for summary
judgment with respect to Plaintiff’s retaliation claim against
Officers Simmons and Little.
2.

Count Two: Excessive Force

In Count Two, Plaintiff brings a claim for excessive
force in violation of the Fourth Amendment, alleging that
Officers Simmons and Little used excessive force by grabbing and
handcuffing Plaintiff without cause.

Am. Compl. ¶ 21.

At his

deposition, Plaintiff stated that Officer Simmons “threw”
Plaintiff up against the police car and handcuffed him after
Plaintiff walked away from the police officers.
28:24-29:1.

Price Dep.

Plaintiff stated that he was thrown against the car

“[w]ith force, but not with that much force,” id. at 29:6-7, and
has admitted that he suffered no physical injuries from the

21

incident, id. at 48:4-6.

Defendants’ primary argument in

support of their motion for summary judgment on Plaintiff’s
excessive force claim is that “[s]uch minimal use of force” is
insufficient to state a claim for excessive force.

Defs.’ Mem.

at 10-11.
Whether a police officer used excessive force in
violation of a citizen’s Fourth Amendment rights depends on
whether the amount of force used was “objectively reasonable.”
Graham v. Connor, 490 U.S. 386, 397 (1989); see also Curley v.
Klem, 499 F.3d 199, 206 (3d Cir. 2007).

To determine objective

reasonableness, the “nature and quality of the intrusion on the
individual’s Fourth Amendment interests” is balanced “against
the countervailing governmental interests at stake.”

Graham,

390 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8
(1985)).
Objective reasonableness is evaluated from “the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396.

The Supreme Court has recognized that “police officers are often
forced to make split-second judgments – in circumstances that
are tense, uncertain, and rapidly evolving – about the amount of
force that is necessary in a particular situation.”

Id. at 397.

For that reason, “‘[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,’
22

violates the Fourth Amendment.”

Id. at 396 (quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

However, the

“reasonableness” inquiry must be objective:

“An officer’s evil

intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force
constitutional.”

Graham, 490 U.S. at 397.

Determining whether a particular police officer’s
actions were objectively reasonable is a “highly individualized
and fact specific” inquiry that requires a court to consider the
“totality of the circumstances.”

Santini v. Fuentes, 795 F.3d

410, 417 (3d Cir. 2015) (quoting Curley, 499 F.3d at 207).
Courts may consider “(1) the severity of the crime at issue,
(2) whether the suspect poses an imminent threat to the safety
of the police or others in the vicinity, and (3) whether the
suspect attempts to resist arrest or flee the scene.”
417 (citing Graham, 490 U.S. at 396).

Id. at

Other relevant factors

include “the possibility that the persons subject to the police
action are themselves violent or dangerous, the duration of the
action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police officers
must contend at one time.”

Sharrar v. Felsing, 128 F.3d 810,

23

822 (3d Cir. 1997), abrogated on other grounds by Curley, 499
F.3d at 209-11.
“The reasonableness of the use of force is normally an
issue for the jury.”

Rivas v. City of Passaic, 365 F.3d 181,

198 (3d Cir. 2004); see also Groman v. Twp. of Manalapan, 47
F.3d 628, 634 (3d Cir. 1995) (reversing district court order
granting summary judgment for defendants on excessive force
claim because there were “material issues of disputed fact and
credibility determinations that cannot be decided on a motion
for summary judgment”).

However, “summary judgment is

appropriate if, as a matter of law, the evidence would not
support a reasonable jury finding that the police officers’
actions were objectively unreasonable.”

Groman, 47 F.3d at 634;

see also Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999)
(“[D]efendants can still win on summary judgment if the district
court concludes, after resolving all factual disputes in favor
of the plaintiff, that the officer’s use of force was
objectively reasonable under the circumstances.” (quoting Scott
v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994))).
a.

Officer Simmons

Contrary to Defendants’ assertions, Plaintiff’s
allegation that Officer Simmons threw him against the car is
sufficient to state a claim for excessive force as a matter of

24

law.

An excessive force claim does not require proof of

physical injury.

See Sharrar, 128 F.3d at 822 (“We do not agree

that the absence of physical injury necessarily signifies that
the force has not been excessive, although the fact that the
physical force applied was of such an extent as to lead to
injury is indeed a relevant factor to be considered as a part of
the totality.”).

Indeed, courts in the Third Circuit have

denied summary judgment on excessive force claims in cases where
a police officer allegedly threw, slammed, or shoved a plaintiff
against a vehicle.

See, e.g., Wood v. Se. Pa. Transp. Auth.,

No. 14-4183, 2016 WL 2619411, at *7-9 (E.D. Pa. May 16, 2016)
(determining that a reasonable jury could conclude that slamming
the plaintiff against a vehicle was objectively unreasonable
under the circumstances); Clifton v. Borough of Eddystone, 824
F. Supp. 2d 617, 629-30 (E.D. Pa. 2011) (concluding that “a
reasonable jury could find ‘yanking’ [the] [p]laintiff out of
the car and ‘slamming’ her against the trunk of the car were
excessive” under the circumstances); Verdier v. Borough, 796 F.
Supp. 2d 606, 626-27 (E.D. Pa. 2011) (denying summary judgment
on excessive force claim where officer allegedly slammed the
plaintiff against his car).
While Plaintiff concedes that Officer Simmons’ use of
force was minimal, there does not appear to have been much, if
any, justification for the use of force at all.
25

Taking the

facts in the light most favorable to Plaintiff, he was engaged
in a non-physical, verbal dispute with a woman, and he attempted
to walk away when police officers approached him.

Nothing in

Plaintiff’s behavior or actions suggested that Plaintiff was
violent or dangerous, armed, or an imminent threat to the safety
of the police officers or others in the vicinity.

It is unclear

what crime the police officers suspected Plaintiff had committed
or was committing prior to approaching him – even based on the
officers’ own affidavits - and the “severity of the crime at
issue” therefore cannot justify Officer Simmons’ use of force.
Nor does “the number of persons with whom the police officers
must contend” suggest that force was necessary: neither party
claims that Plaintiff’s acquaintance was involved in the
interaction between the officers and Plaintiff, and thus
Plaintiff was alone in an interaction with two police officers.
The sole possible justification for Officer Simmons’
use of force is that Plaintiff walked away when the police
officers approached him.

On this basis, Defendants argue,

Officer Simmons was “entitled” to use “physical coercion” to
“investigate the situation” involving Plaintiff and his female
acquaintance.

Defs.’ Mem. at 11.

However, this is not a case

where Plaintiff was “actively resisting or attempting to evade
arrest by flight,” see Graham, 490 U.S. 397.

There is no

indication that the police officers were attempting to arrest
26

Plaintiff prior to the moment he started walking away, and there
is a factual dispute as to whether Plaintiff’s actions
constituted “flight” at all.

Plaintiff stated that he was only

walking, not running, away, and that he did so solely because he
had previously had negative interactions with police officers.
Price Dep. 27:2-28:7.
Construing the facts in the light most favorable to
Plaintiff, there are genuine issues of material fact regarding
whether Plaintiff’s actions justified Officer Simmons’ use of
force against him.

A reasonable jury could find that Officer

Simmons’ use of force was excessive under the circumstances.
Therefore, the Court cannot conclude that Officer Simmons’ use
of force against Plaintiff was objectively reasonable as a
matter of law.
Defendants argue that even if there are issues of
material fact with respect to Plaintiff’s excessive force claim,
the Court should grant summary judgment for Defendants on that
claim because Officer Simmons is entitled to qualified immunity
as a matter of law.

The Court disagrees.

“[Q]ualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
27

Pearson

Fitzgerald, 457 U.S. 800, 818 (1982)).

The doctrine balances

“the need to hold public officials accountable when they
exercise power irresponsibly” with “the need to shield officials
from harassment, distraction, and liability when they perform
their duties reasonably.”

Id.

To determine whether qualified

immunity bars a plaintiff’s constitutional claims, a court
evaluates “(1) whether the plaintiff has alleged the deprivation
of an actual constitutional right, and if so, (2) whether the
right was clearly established at the time of the alleged
violation.”

United Artist Theatre Circuit, Inc. v. Twp. of

Warrington, 316 F.3d 392, 398 (3d Cir. 2003) (citing Saucier v.
Katz, 533 U.S. 194, 200 (2001)).

In Pearson, the Supreme Court

clarified that the order of the inquiry is not mandatory, and a
district court may use its discretion to consider these two
steps in whichever order “will best facilitate the fair and
efficient disposition of each case.”

555 U.S. at 242.

On a motion for summary judgment, it is appropriate
for a district court to consider the issue of qualified immunity
“where the dispute does not turn upon ‘which facts the parties
might be able to prove, but, rather, whether or not certain
given facts showed a violation of clearly established law.’”
Reilly v. City of Atl. City, 532 F.3d 216, 234 (3d Cir. 2008)
(quoting Wright v. City of Phila., 409 F.3d 595, 599 (3d Cir.
2005)).

If the facts relevant to that determination “are
28

intensely disputed, . . . [Third Circuit] precedent makes clear
that such disputes must be resolved by a jury after a trial.”
Curley, 499 F.3d at 208.
Here, there are disputed issues of material fact
regarding both the amount of force used and Officer Simmons’
potential justification for the use of force.

As a result, the

Court finds that Officer Simmons is not entitled to qualified
immunity at this time.

See, e.g., Wood, 2016 WL 2619411, at *8-

9 (rejecting qualified immunity defense for excessive force
claim based on officer slamming plaintiff against his vehicle);
Verdier, 796 F. Supp. 2d at 631 (same).

The Court will

therefore deny Defendants’ motion for summary judgment with
respect to Plaintiff’s claim against Officer Simmons in Count
Two of the Amended Complaint.
b.

Officer Little

Defendants argue that all of Plaintiff’s federal
claims against Officer Little, including Plaintiff’s excessive
force claim, must be dismissed because Plaintiff did not
attribute any actions to Officer Little at his deposition.
Defs.’ Mem. at 9.

See

In fact, Defendants state, Plaintiff admitted

that Officer Simmons “was the one that was actually doing all of
the stuff to me.”

Id. (quoting Price Dep. 14:3-5).

Therefore,

Defendants argue, Plaintiff has failed to demonstrate Officer

29

Little’s personal involvement in the alleged wrongs, as required
in a § 1983 action, and Plaintiff’s claims against Officer
Little must fail.

See Defs.’ Mem. at 9-10.

Under § 1983, a state actor “is only liable for his or
her own misconduct.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 677

Accordingly, Plaintiff must establish that each

individual state actor defendant played an affirmative part in
the alleged misconduct.
(3d Cir. 2005).

Evancho v. Fisher, 423 F.3d 347, 353

This requirement of “personal involvement in

the alleged wrongs” may “be shown through allegations of
personal direction or of actual knowledge and acquiescence.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207-1208 (3d Cir. 1988)
(citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)).

A

showing of actual knowledge “must be made with appropriate
particularity.”

Id. at 1207.

Plaintiff’s excessive force claim against Officer
Little fails under this standard.

The Third Circuit has held

that “a police officer has a duty to take reasonable steps to
protect a victim from another officer’s use of excessive force.”
Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Specifically, if an officer “fails or refuses to intervene when
a constitutional violation such as an unprovoked beating takes
place in his presence, the officer is directly liable under
Section 1983.”

Id. at 650 (quoting Byrd v. Clark, 783 F.2d
30

1002, 1007 (11th Cir. 1986)).

However, the officer is only

liable “if there is a realistic and reasonable opportunity to
intervene.”

Id.

Here, there are no facts in the record

suggesting Officer Little had a “realistic and reasonable”
opportunity to intervene in any possible use of excessive force,
as Plaintiff does not even recall seeing Officer Little on the
day of the incident.

See Price Dep. 14:14-15:4.

Therefore, the

Court will grant summary judgment for Defendants on Plaintiff’s
excessive force claim against Officer Little.
3.

Count Three: Unreasonable Search and Seizure

In Count Three of his Amended Complaint, Plaintiff
brings a claim for unreasonable search and seizure in violation
of the Fourth Amendment.

Am. Compl. ¶ 23.

The Fourth Amendment

protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.”

U.S. Const. amend. IV.

Whether a

search or seizure is unreasonable “depends on all of the
circumstances surrounding the search or seizure and the nature
of the search or seizure itself.”

Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 616 (1989) (quoting United States v.
Montoya de Hernandez, 473 U.S. 531, 537 (1985)).

A court’s

inquiry involves assessing “on the one hand, the degree to which
[the search or seizure] intrudes upon an individual’s privacy

31

and, on the other, the degree to which [the search or seizure]
is needed for the promotion of legitimate governmental
interests.”

Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

A person is “seized” for purposes of the Fourth
Amendment if, “in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he
was not free to leave.”
544, 554 (1980).

United States v. Mendenhall, 446 U.S.

There are three broad categories of

interactions between citizens and the police, each involving
“varying degrees of constitutional scrutiny”: “(1) policecitizen exchanges involving no coercion or detention; (2) brief
seizures or investigatory detentions; and (3) full-scale
arrests.”

United States v. Brown, 765 F.3d 278, 288 (3d Cir.

2014) (quoting United States v. Perez, 443 F.3d 772, 777 (11th
Cir. 2006)).
The first category is not a “seizure” and does not
implicate the Fourth Amendment.

Florida v. Bostick, 501 U.S.

429, 434 (1991); United States v. Williams, 413 F.3d 347, 352
(3d Cir. 2005) (officers do not violate the Fourth Amendment
“merely by approaching individuals on the street or in other
public places” (quoting United States v. Drayton, 536 U.S. 194,
200 (2002))).

When a police officer stops and detains a citizen

for a brief period, but the detention does not rise to the level
of an arrest – an interaction know as a “Terry stop” – the
32

Fourth Amendment requires the police officer to have reasonable,
“articulable suspicion” for the interaction.

Terry v. Ohio, 392

U.S. 1, 33 (1968); see also Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (noting that an officer may “conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot”).

The

third category, a full-scale arrest, requires a police officer
to have probable cause.

Beck v. Ohio, 379 U.S. 89, 91 (1964).

Here, based on Plaintiff’s version of events, the
interaction between Plaintiff and Officers Simmons and Little
can be separated into four distinct stages: (1) the police
officers’ initial approach; (2) Officer Simmons’ initial
physical contact with Plaintiff; (3) Officer Simmons’ search of
Plaintiff’s person; and (4) the arrest.

As there are no facts

in the record suggesting that Officer Little had any “personal
involvement in the alleged wrongs,” Rode, 845 F.2d 1195 at 120708, the Court will grant Defendants’ motion for summary judgment
with respect to Plaintiff’s unreasonable search and seizure
claim against Officer Little.13

13

As previously discussed, Plaintiff does not even
recall seeing Officer Little on the day of the arrest. See
Price Dep. 15:4. In addition, Officer Little claims that he
walked away to speak with Plaintiff’s female acquaintance after
Officer Simmons placed Plaintiff in handcuffs. See Little Decl.
¶¶ 10-11.
33

With respect to Officer Simmons, construing all of the
facts in the light most favorable to Plaintiff and for the
reasons discussed below, the Court concludes that Officer
Simmons’ initial physical contact with Plaintiff constituted, at
minimum, a brief seizure, for which reasonable suspicion was
required.

Probable cause indisputably existed for Plaintiff’s

arrest, as Plaintiff admits that Officer Simmons located crack
cocaine on his person.14

See Price Dep. 43:16-19.

The Court

will therefore address whether there are disputed issues of
material fact regarding Officer Simmons’ reasonable suspicion
for the seizure and justification for the search.
a.

Seizure

Defendants claim that the police officers’ “initial
approach” of Plaintiff did not rise above the level of a “mere

14

“Probable cause exists where 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.” United States v. Cruz, 910 F.2d 1072,
1076 (3d Cir. 1990) (citing Dunaway v. New York, 442 U.S. 200,
208 n.9 (1979)). The existence of probable cause is usually a
question of fact for the jury. Merkle v. Upper Dublin Sch.
Dist., 211 F.3d 782, 788 (3d Cir. 2000). “However, a district
court may conclude ‘that probable cause exists as a matter of
law if the evidence, viewed most favorably to [the] [p]laintiff,
reasonably would not support a contrary factual finding,’ and
may enter summary judgment accordingly.” Id. at 788-89 (quoting
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)). Here,
Officer Simmons’ discovery of crack cocaine, the possession of
which is a criminal offense, on Plaintiff’s person is sufficient
to establish probable cause as a matter of law.
34

encounter.”
omitted).

Defs.’ Mem. at 13 (internal quotation marks

As the Supreme Court has explained, “[s]o long as a

reasonable person would feel free ‘to disregard the police and
go about his business,’ the encounter is consensual and no
reasonable suspicion is required.”

Bostick, 501 U.S. at 434

(citation omitted) (quoting California v. Hodari D., 499 U.S.
621, 628 (1991)).

However, an encounter between a police

officer and a citizen “loses its consensual nature,” and a
seizure implicating the Fourth Amendment occurs, “when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.” Id. (quoting
Terry, 392 U.S. at 19 n.16).
Perhaps Defendants are correct that when they
initially approached Plaintiff, he felt “free to disregard the
police and go about his business.”

Bostick, 501 U.S. at 434

(quoting Hodari D., 499 U.S. at 628).
to walk away.

Indeed, Plaintiff started

However, once Officer Simmons grabbed Plaintiff

and placed handcuffs on him, Officer Simmons restrained
Plaintiff’s liberty, and a seizure occurred.

At that point,

Officer Simmons was required to have “reasonable, articulable
suspicion that criminal activity is afoot” to seize Plaintiff
lawfully.

See Wardlow, 528 U.S. at 123.
Whether a seizure is reasonable depends on

(1) “whether the officer’s action was justified at its
35

inception,” and (2) “whether it was reasonably related in scope
to the circumstances which justified the interference in the
first place.”

Terry, 392 U.S. at 19-20.

“[I]n justifying the

particular intrusion the police officer must be able to point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.”

Id. at 21.

Here, Defendants argue that Officer Simmons had
reasonable suspicion to stop Plaintiff based upon
(1) Plaintiff’s “[n]ervous, evasive behavior,” including
Plaintiff’s “attempt to evade” the police officers by walking
away when they approached him, and (2) the “altercation” between
Plaintiff and his acquaintance.

Defs.’ Mem. at 13-14.

The Supreme Court has recognized that “nervous,
evasive behavior is [a] pertinent factor in determining
reasonable suspicion.”

Wardlow, 528 U.S. at 124.

Further,

“[h]eadlong flight--wherever it occurs--is the consummate act of
evasion:

It is not necessarily indicative of wrongdoing, but it

is certainly suggestive of such.”

Id.

However, as the Third

Circuit has repeatedly stated, “the Supreme Court has never held
that unprovoked flight alone is enough to justify a stop.”
United States v. Navedo, 694 F.3d 463, 472 (3d Cir. 2012)
(quoting United States v. Bonner, 363 F.3d 213, 217 (3d Cir.
2004)).

Rather, “flight upon noticing police, plus some other
36

indicia of wrongdoing, can constitute reasonable suspicion.”
Id. (quoting Bonner, 363 F.3d at 217).
Here, the only “nervous, evasive behavior” that any
party alleges occurred is Plaintiff’s movement away from the
police officers.

Merely walking away from a police officer is

not “headlong flight,” and Plaintiff and Defendants dispute
whether Plaintiff was walking or running away.

Compare Little

Decl. ¶ 8, Simmons Decl. ¶ 7 (Plaintiff “attempted to push past
[them] and run from the scene”) with Price Dep. 24:13-20
(Plaintiff “just walked away, because [he] didn’t want any
interference with the police”).

Moreover, even if Plaintiff’s

actions did constitute flight, there is no other “indicia of
wrongdoing” that, combined with Plaintiff’s flight, could have
created reasonable suspicion as a matter of law.

There are no

facts indicating that the officers had any reason to believe
Plaintiff was armed or dangerous, or that he was carrying any
drugs or engaged in any criminal activity.

Cf. United States v.

Figueroa, No. 15-98, 2015 WL 7756008, at *4 (D.N.J. Nov. 30,
2015) (“But this was not mere flight; this was flight from the
police, after their actual observation of defendant’s
concealment of a handgun.”).

Nor is there any indication that

the officers attempted to speak with Plaintiff before he walked
away.

Cf. United States v. Samuels, 131 Fed. App’x 859, 862-63

(3d Cir. 2005) (non-precedential) (holding that police officers
37

had reasonable suspicion to seize the plaintiff based on an
anonymous tip, a visible bulge in the plaintiff’s waist band,
and the plaintiff’s nervous behavior, refusal to answer
questions, and attempt to walk away).
The only facts Defendants identify that could have
contributed to reasonable suspicion, aside from Plaintiff’s
“flight,” relate to the interaction between Plaintiff and his
female acquaintance, as that was the only other event preceding
Officer Simmons’ decision to grab and handcuff Plaintiff.

As an

initial matter, the parties have a minor disagreement regarding
the extent of the interaction.

Plaintiff maintains that,

although he and his acquaintance “were right in each other’s
face, close to each other,” Price Dep. 23:8-10, neither one
touched the other, id. at 20:16-21:2, and the argument was
purely verbal.

Defendants instead claim that Office Little

observed the woman “grabbing Plaintiff by [his] collar.”

Defs.’

Mem. at 5 n.2 (citing Simmons Decl. ¶ 5; Little Decl. ¶¶ 5-6).
Regardless of their dispute regarding Plaintiff’s acquaintance’s
movements, however, the parties do not dispute that Plaintiff
did not touch his acquaintance during their argument.15

15

Even under Defendants’ version of the facts, Plaintiff
was, at most, having a verbal argument with a woman who grabbed
Plaintiff. At one point in their papers, Defendants argue that
Officers Simmons and Little were operating under the belief,
which Defendants agree to treat as mistaken for the purposes of
this motion, that “Plaintiff was involved in a physical
38

Plaintiff contends that his argument with his
acquaintance cannot support reasonable suspicion because it is
not a crime for two people to argue.

See Pl.’s Mem at 14.

Indeed, Plaintiff notes, he was not cited or charged with any
crime relating to the argument.

Id.

As the Supreme Court made

clear in Wardlow and as the Third Circuit has established, a
police officer conducting an investigative stop must have
reasonable suspicion of criminal activity.

See Johnson v.

Campbell, 332 F.3d 199, 208 (3d Cir. 2003) (“[T]he activity of
which the detainee is suspected must actually be criminal.”
(citing United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.
2000)).

Thus, a verbal argument is simply not sufficient to

provide reasonable suspicion for a stop, even when combined with
flight.
Under these circumstances, a reasonable jury could
conclude that Officer Simmons did not possess reasonable
suspicion to stop Plaintiff, and therefore that his seizure of
Plaintiff violated Plaintiff’s Fourth Amendment rights.
Further, Officer Simmons is not entitled to qualified
immunity.

Disputed facts exist that are relevant to determining

whether or not Officer Simmons is entitled to qualified
altercation with a female on the sidewalk.” Defs.’ Mem. at 14.
But nothing in the facts of this case, including the
declarations from Officers Simmons and Little, suggests that
Plaintiff touched his acquaintance or did anything physical; the
facts suggest only that his acquaintance may have done so.
39

immunity.

The requirements that a police officer have

reasonable suspicion for an investigatory stop and reasonable
justification for a safety frisk are clearly established and
have been for quite some time.

See Terry, 293 U.S. at 20, 27.

However, whether or not the “given facts showed a violation of
clearly established law” in this particular case, Reilly, 532
F.3d at 234 (quoting Wright, 409 F.3d at 599), depends on the
resolution of disputed facts, including the nature of
Plaintiff’s interaction with his acquaintance and whether
Plaintiff attempted to flee the scene.
b.

Search

“[W]hen police officers make an investigative stop,
they may take such steps as are ‘reasonably necessary to protect
their personal safety and to maintain the status quo’ during the
course of the stop.”

United States v. Edwards, 53 F.3d 616, 619

(3d Cir. 1995) (quoting United States v. Hensley, 469 U.S. 221,
235 (1985)).

For example, a police officer may conduct “a

reasonable search for weapons for the protection of the police
officer, where [the officer] has reason to believe that he is
dealing with an armed and dangerous individual, regardless of
whether he has probable cause to arrest the individual.”
392 U.S. at 27.

Terry,

To justify such a search, “the police officer

must be able to point to specific and articulable facts which,

40

taken together with rational inferences from those facts,
reasonably warrant that intrusion.”

Id. at 21.

Here, Officer Simmons claims that he searched
Plaintiff because he saw a knife protruding from Plaintiff’s
left inside jacket pocket.

See Simmons Decl. ¶¶ 12-14.

Plaintiff does not dispute that he was carrying a knife, see
Price Dep. 25:8-26:11, and he stated that it was on the outside
of his belt, see id. at 26:10-18, suggesting that it was
visible.

However, even if the knife were visible, Officer

Simmons had no reason to believe that Plaintiff was dangerous,
and Plaintiff was already in handcuffs at the time of the
search, so a reasonable jury could conclude that the search was
not necessary for the protection of the officers.

On the facts

currently before the Court, therefore, dismissal as a matter of
law is not warranted on Plaintiff’s claim that Officer Simmons’
search was unreasonable in violation of the Fourth Amendment.
*

*

*

As there are genuine disputes of material fact as to
whether (1) Officer Simmons had reasonable suspicion to stop and
detain Plaintiff, and (2) Officer Simmons had justification to
search Plaintiff, the Court will deny Defendants’ motion for
summary judgment with respect to Plaintiff’s unreasonablesearch-and-seizure claim against Officer Simmons.

41

4.

Count Four: Equal Protection

In Count Four of Plaintiff’s Amended Complaint, he
brings a claim against Officers Simmons and Little under the
Equal Protection Clause of the Fourteenth Amendment, alleging
that Officers Simmons and Little “intentionally treated
Plaintiff differently from similarly situated citizens by
arresting him without cause after a verbal dispute with a
female.”

Am. Compl. ¶ 25.

Plaintiff appears to assert his

equal protection claim under the “class of one” theory, which
requires Plaintiff to demonstrate that (1) he “has been
intentionally treated differently from others similarly
situated” and (2) “there is no rational basis for the difference
in treatment.”

Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (per curiam).
Defendants argue that Plaintiff’s claim fails as a
matter of law because (1) Plaintiff cannot establish that anyone
was “similarly situated” to him with respect to his treatment by
Officers Simmons and Little; and (2) Plaintiff’s admission that
he possessed crack cocaine at the time of his arrest “defeats
any argument that he was selectively arrested or prosecuted on
the basis of any impermissible consideration, out of bad faith,
or out of a desire to injure him.”

Defs.’ Mem. at 23-24.

In response, Plaintiff argues that (1) he was
similarly situated to his female acquaintance, who was also
42

having a verbal dispute on the street; (2) Officers Simmons and
Little intentionally treated him differently as retaliation for
the filing of his previous complaint, which was not rationally
related to any legitimate Government interest; and (3) there was
no other rational basis for the differential treatment.

See

Pl.’s Mem. at 22.
“Persons are similarly situated under the Equal
Protection Clause when they are alike ‘in all relevant
aspects.’”

Startzell v. City of Phila., 533 F.3d 183, 203 (3d

Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
Defendants argue that Plaintiff cannot identify anyone who was
similarly situated because “he admits that no other people that
day were involved in verbal disputes on the street.”
Mem. at 24 (citing Price Dep. 11:23-12:15).

Defs.’

However, at his

deposition, Plaintiff stated that there were no other
individuals involved in verbal disputes on the street besides
himself “and the young lady.”
added).

Price Dep. 12:7-13 (emphasis

Contrary to Defendants’ assertion, Plaintiff did not

state “that he was the only one involved in a dispute.”
Mem. at 24.

Defs.’

In fact, it is undisputed that Plaintiff was

engaged in a dispute with another person, and that Officers
Simmons and Little did not question or apprehend her.

Plaintiff

is correct that Officer Simmons’ and Little’s decision not to
stop or search Plaintiff’s acquaintance establishes that the
43

officers treated Plaintiff differently from a similarly situated
individual.
However, the Court agrees with Defendants that
Plaintiff’s claim fails as a matter of law, because Plaintiff
cannot establish that the particular differential treatment he
alleges in his Amended Complaint had no rational basis.
Plaintiff alleges that he was treated differently from similarly
situated citizens solely because he was “arrest[ed] without
cause after a verbal dispute with a female.”

Am. Compl. ¶ 25.

In general, a plaintiff bringing a “class of one” claim must
demonstrate that any differential treatment was “irrational and
wholly arbitrary.”

Eichenlaub v. Twp. of Indiana, 385 F.3d 274,

286 (3d Cir. 2004) (quoting Olech, 528 U.S. at 564).

A “class

of one” claim, like any equal protection claim evaluated under
rational basis review, cannot succeed “if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.”

Heller v. Doe, 509 U.S.

312, 320 (1993) (quoting FCC v. Beach Commc’ns, 508 U.S. 307,
313 (1993)).
Regardless of whether or not Officers Simmons and
Little had a rational basis for initially stopping and searching
Plaintiff but not his acquaintance, they certainly had a
rational basis for arresting Plaintiff, but not his
acquaintance, after they found drugs on Plaintiff’s person.
44

In his opposition, Plaintiff argues that he meets the
first element of an equal protection claim because “Plaintiff’s
female companion . . . was not similarly grabbed, handcuffed,
and slammed against a car and then searched.”

Pl.’s Mem. at 22.

Plaintiff therefore appears to argue that the differential
treatment was the initial stop and seizure, and not the arrest.
Plaintiff might be correct that Officer Simmons did not have a
rational basis to stop Plaintiff as opposed to his
acquaintance.16

However, Plaintiff alleges in his complaint that

Officers Little and Simmons treated him differently “by
arresting him without cause,” Am. Compl. ¶ 25, not by stopping
and seizing him, and Plaintiff cannot add a new basis for an
element of one of his claims at this stage of the proceedings.17

16

Defendants have no reason to believe that Plaintiff’s
acquaintance did not also possess crack cocaine. More
importantly, facts that the officers had no knowledge of prior
to the incident could not possibly provide a rational basis for
Officer Simmons to stop and search Plaintiff and not his
acquaintance. At the time that Officers Simmons and Little
stopped Plaintiff, they did not know that he possessed crack
cocaine and had no reason to believe that he did. Indeed, the
crack cocaine itself was suppressed as evidence in Plaintiff’s
criminal trial because the trial court determined that Officers
Simmons and Little had no probable cause to believe that
Plaintiff possessed it.
17

A plaintiff is permitted to introduce new facts into
the record at the summary judgment stage. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 563 (2007) (“[O]nce a claim has been
stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.”).
However, a plaintiff cannot introduce new legal theories or
claims through an opposition to a motion for summary judgment.
45

Furthermore, even if Plaintiff were to amend his
complaint to include the initial stop and seizure as
differential treatment, Plaintiff’s claim would still fail as a
matter of law, because he cannot demonstrate that there is no
rational basis for his difference in treatment under the very
high standard required in the context of police decisions.

As

the Supreme Court has explained, “[t]here are some forms of
state action . . . which by their nature involve discretionary
decisionmaking based on a vast array of subjective,
individualized assessments.”

Engquist v. Or. Dep’t of Agric.,

553 U.S. 591, 603 (2008) (rejecting a class-of-one claim in the
employment context, but discussing police officers’ decision to
pull over drivers in a traffic stop).

See myService Force, Inc. v. Am. Home Shield, No. 10-6793, 2013
WL 180287, at *12 (E.D. Pa. Jan. 17, 2013) (“Federal pleading
standards do not allow a party ‘to raise new claims at the
summary judgment stage.’” (quoting Dewees v. Haste, 620 F. Supp.
2d 625, 635 n.7 (M.D. Pa. 2009))); see also Bell v. City of
Phila., 275 Fed. App’x 157, 160 (3d Cir. 2008) (nonprecedential) (“A plaintiff ‘may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment.’” (quoting Shanahan v. City of Chi., 82 F.3d 776, 781
(7th Cir. 1996))). The allegedly differential treatment is an
element of Plaintiff’s equal protection claim, and therefore
changing it is not merely adding new facts. If Plaintiff wishes
to pursue an equal protection claim based on a different theory
of differential treatment - based on the initial stop and
seizure as opposed to the arrest - he would need to seek leave
to amend his complaint to include that claim.
46

Therefore, the Court will grant Defendants’ motion for
summary judgment with respect to Plaintiff’s equal protection
claim.
B.

Plaintiff’s State Law Claims
Plaintiff brings Pennsylvania state law claims against

Officers Simmons and Little for the torts of (1) false arrest
(Count Five), (2) false imprisonment (Count Six), (3) abuse of
process (Count Seven), (4) malicious prosecution (Count Eight),
and (5) intentional infliction of emotional distress (Count
Nine).

In Count Ten, which the Court has stayed, Plaintiff

brings a claim against Former Commissioner Ramsey under the
doctrine of respondeat superior, alleging that Ramsey is
responsible for the tortious actions of Officers Simmons and
Little.

In their motion for summary judgment, Defendants argue

that all of Plaintiff’s state law claims fail as a matter of
law, and that all of Plaintiff’s state law claims against
Officers Simmons and Little are barred by Pennsylvania’s
Political Subdivision Tort Claims Act (“the PSTCA” or “the
Act”).
For the reasons discussed below, all of Plaintiff’s
state law claims against Officers Simmons and Little fail as a
matter of law.

As none of Plaintiff’s state law claims survive

summary judgment, the Court need not address whether the

47

officers’ conduct constituted “actual malice” or “willful
misconduct,” as Plaintiff would need to prove in order to
overcome the PSTCA.18
1.

Counts Five and Six: False Arrest and False
Imprisonment

In Counts Five and Six, Plaintiff brings Pennsylvania
state law claims against Officers Simmons and Little based on
the torts of false arrest and false imprisonment.

Under

Pennsylvania law, the tort of false arrest requires a plaintiff
to establish either “1) an arrest made without probable cause or
2) an arrest made by a person without privilege to do so.”
v. City of Pittsburgh, 641 A.2d 289, 295 n.2 (Pa. 1994).

Renk
A

claim for false imprisonment under Pennsylvania law, similarly,
18

Under the PSTCA, “[a]n employee of a local agency is
liable for civil damages on account of any injury to a person
. . . caused by acts of the employee which are within the scope
of his office or duties only to the same extent as his employing
local agency. . . .” 42 Pa. Cons. Stat. Ann. § 8545. In
Pennsylvania, “no local agency shall be liable for any damages
on account of any injury to a person or property caused by any
act of the local agency or an employee thereof or any other
person.” Id. § 8541. Therefore, local agency employees, like
Officers Little and Simmons, are generally immune from suit for
personal injury caused by their acts within the scope of their
duties. However, the Act includes an exception to immunity if
“it is judicially determined that the act of the employee caused
the injury and that such act constituted a crime, actual fraud,
actual malice or willful misconduct.” Id. § 8550. “[W]ilful
misconduct means that the actor desired to bring about the
result that followed, or at least that he was aware that it was
substantially certain to ensue,” such that the actor’s desire
can be implied. Evans v. Phila. Transp. Co., 212 A.2d 440, 443
(Pa. 1965).
48

requires a plaintiff to prove that (1) he had been detained and
(2) the detention was unlawful.

Gwynn v. City of Phila., 719

F.3d 295, 304 n.4 (3d Cir. 2013) (citing Renk, 641 A.2d at
293)).
Plaintiff’s false arrest and false imprisonment claims
both require Plaintiff to show that Officers Simmons and Little
did not have probable cause to arrest him.

Defendants argue

that both claims fail because it is undisputed that Officer
Simmons located crack cocaine on Plaintiff’s person prior to the
arrest, which established probable cause for the arrest.
Defs.’ Mem. at 15-16.

See

Defendants further assert that probable

cause existed for Plaintiff’s arrest (1) even though the
evidence the officers seized was suppressed in Plaintiff’s
criminal proceedings, because the exclusionary rule does not
apply to § 1983 actions; and (2) even if Officer Simmons
initially lacked reasonable suspicion to stop and search
Plaintiff, because the “fruit of the poisonous tree” doctrine
does not apply to § 1983 actions, either.

Id. at 15-16 & n.8.

In response, Plaintiff appears to argue, essentially,
that Officers Simmons and Little did not have probable cause to
arrest him because they did not have reasonable suspicion to
stop him or probable cause to search him; i.e., that probable
cause for arrest is negated through some variation of the

49

exclusionary rule or the “fruit of the poisonous tree” doctrine.
See Pl.’s Mem. at 15.
Defendants are correct that probable cause existed for
Plaintiff’s arrest as a matter of law.19

Contrary to Plaintiff’s

argument, as Defendants correctly note, neither the exclusionary
rule nor the fruit of the poisonous tree doctrine negates the
presence of probable cause or is applicable to Plaintiff’s
claims.
The exclusionary rule “is a prudential doctrine
designed to enforce the Fourth Amendment by deterring law
enforcement from unreasonable searches and seizures” by
prohibiting the government from relying at trial on evidence
obtained in violation of the Amendment.

United States v. Franz,

772 F.3d 134, 145 (3d Cir. 2014) (citing Davis v. United States,
564 U.S. 229, 236 (2011)).

The fruit of the poisonous tree

doctrine, an extension of the exclusionary rule, “excludes
evidence obtained from or as a consequence of lawless official
acts.”

Costello v. United States, 365 U.S. 265, 280 (1961).

19

Under Pennsylvania law, “[p]robable cause exists when
‘the facts and circumstances which are within the knowledge of
the police officer at the time of the arrest, and of which he
has reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief that the
suspect has committed or is committing a crime.’” Renk, 641
A.2d at 293 (quoting Commonwealth v. Rodriguez, 585 A.2d 988,
990 (Pa. 1991)). Plaintiff admits that Officer Simmons located
crack cocaine on his person, see Price Dep. 43:16-19, which is
sufficient to establish probable cause under that standard.
50

The exclusionary rule is not “a personal
constitutional right of the party aggrieved.”
Calandra, 414 U.S. 338, 348 (1974).

United States v.

As the Supreme Court has

explained, “standing to invoke the exclusionary rule has been
confined to situations where the Government seeks to use such
evidence to incriminate the victim of the unlawful search.”

Id.

“The evil of an unreasonable search or seizure is that it
invades privacy, not that it uncovers crime, which is no evil at
all.”

Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) (quoting

Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999)).
“Victims of unreasonable searches or seizures may recover
damages directly related to the invasion of their privacy including (where appropriate) damages for physical injury,
property damage, injury to reputation, etc.; but such victims
cannot be compensated for injuries that result from the
discovery of incriminating evidence and consequent criminal
prosecution.”

Id. (quoting Townes, 176 F.3d at 148).

The

“fruit of the poisonous tree” doctrine likewise cannot be used
by a plaintiff in a civil suit to avoid consideration of
evidence obtained through police misconduct.

See Townes, 176

F.3d at 149 (holding that “[t]he fruit of the poisonous tree
doctrine . . . is inapplicable to civil § 1983 actions”).
As a result, the fact that Officer Simmons may not
have had reasonable suspicion to stop Plaintiff or probable
51

cause to search him does not eliminate Officer Simmons’ probable
cause to arrest Plaintiff after locating drugs on his person.
See, e.g., Zamichieli v. Andrews, No. 12-3200, 2016 U.S. Dist.
LEXIS 51364, at *11-12 (E.D. Pa. Apr. 15, 2016) (finding that
suppression of a gun found during an unreasonable search “does
not prevent [the] court from considering such evidence in
connection with its analysis of [Plaintiff’s] § 1983 claims”);
Lockhart v. City of Easton, No. 12-0133, 2013 WL 5225234, at *7
(E.D. Pa. Sept. 17, 2013) (finding that “the exclusionary rule
does not alter the probable cause analysis” on a false arrest
claim); Christian v. Orr, No. 08-2397, 2011 WL 710209, at *17
(E.D. Pa. Mar. 1, 2011) (“Whatever the legality of the searches
that yielded the marijuana . . . possession of this drug is
illegal in Pennsylvania and thus provides a basis for the police
to effect a legitimate arrest.”); Konopka v. Borough of Wyo.,
383 F. Supp. 2d 666, 675 (M.D. Pa. 2005) (concluding that
“[w]hile the fruits of the allegedly illegal search may be
inadmissible in criminal proceedings under the exclusionary
rule, the illegality of said search does not vitiate the
existence of probable cause” in relation to Plaintiff’s
malicious prosecution claim); Padilla v. Miller, 143 F. Supp. 2d
479, 491 (M.D. Pa. 2001) (“The lack of probable cause to stop
and search does not vitiate the probable cause to arrest,
because (among other reasons) the fruit of the poisonous tree
52

doctrine is not available to a § 1983 claimant.” (emphasis
omitted) (quoting Townes, 176 F.3d at 149)).
Therefore, the Court will grant summary judgment for
Defendants on Plaintiff’s false arrest and false imprisonment
claims against Officers Simmons and Little.
2.

Count Seven: Abuse of Process

Count Seven of Plaintiff’s Amended Complaint brings a
Pennsylvania state law claim of abuse of process against
Officers Simmons and Little, alleging that Officers Simmons and
Little unlawfully arrested Plaintiff in retaliation for the
previous lawsuit Plaintiff filed, thus using the legal process
for that which it was not intended (i.e., retaliation).
Compl. ¶ 31.

Am.

To prevail on an abuse of process claim under

Pennsylvania law, a plaintiff must establish that “the defendant
(1) used a legal process against the plaintiff, (2) primarily to
accomplish a purpose for which the process was not designed; and
(3) harm has been caused to the plaintiff.”

Rosen v. Am. Bank

of Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993).
The Third Circuit has explained that “[t]he gist of an
action for abuse of process is the improper use of process after
it has been issued, that is, a perversion of it.”

Gen.

Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 304
(3d Cir. 2003) (alteration in original) (quoting McGee v. Feege,

53

535 A.2d 1020, 1023 (Pa. 1987)).

The requisite “perversion” of

the legal process “occurs when a party uses the process
‘primarily to accomplish a purpose for which the process was not
designed.’”

Id. (emphasis added) (quoting Dumont Television

& Radio Corp. v. Franklin Elec. Co. of Phila., 154 A.2d 585, 587
(Pa. 1959)).

Accordingly, “there is no action for abuse of

process when the process is used for the purpose for which it is
intended, but there is an incidental motive or spite or ulterior
purpose of benefit to the defendant.”
Rosen, 627 A.2d at 192).

Id. at 305 n.2 (quoting

Illegitimate purposes include, for

example, “extortion, forcing a defendant to surrender a legal
right, or blackmail.”

Mawson v. Pittson Police Dep’t, No. 13-

1714, 2014 WL 3735133, at *10 (M.D. Pa. July 28, 2014).
Defendants argue that (1) Plaintiff’s claim fails for
the same reasons as his retaliation claim, to the extent he
alleges that the arrest was retaliatory; and (2) Plaintiff has
failed to meet his burden because Officers Simmons and Little
merely carried out Plaintiff’s arrest to its authorized
conclusion.

Defs.’ Mem. at 22.

Plaintiff responds that his

detention without reasonable suspicion and arrest without
probable cause were both retaliatory and discriminatory, and
therefore constituted an abuse of process.

Pl.’s Mem. at 21.

Here, as Defendants point out, there are no facts in
the record supporting Plaintiff’s allegation that Officer
54

Simmons arrested Plaintiff in retaliation for Plaintiff’s
previous lawsuit, as opposed to arresting Plaintiff based on his
discovery of crack cocaine in Plaintiff’s pocket.

Nor has

Plaintiff provided any other evidence of an improper motive for
the arrest.

Further, and more importantly, even if Officer

Simmons did have an improper motive for the arrest, Plaintiff
has not made any allegation – let alone established any facts –
suggesting that Officers Simmons or Little had any improper
motive in conducting the suit against him, as opposed to an
alleged improper motive in initiating it.

Plaintiff therefore

does not have a claim for abuse of process under Pennsylvania
law.

See, e.g., Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir.

1989) (explaining that, unlike a claim for malicious
prosecution, a “claim for malicious abuse of process lies where
‘prosecution is initiated legitimately and thereafter is used
for a purpose other than that intended by the law’” (quoting
Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977)));
Giordano v. Murano-Nix, No. 12-7034, 2014 U.S. Dist. LEXIS 1861,
at *41 (E.D. Pa. Jan. 8, 2014) (“[M]erely continuing to pursue a
claim that was initiated with malice does not transform a
malicious prosecution claim into an action for abuse of
process.”).

55

Accordingly, the Court will grant Defendants’ motion
for summary judgment with respect to Plaintiff’s abuse of
process claim.
3.

Count Eight: Malicious Prosecution

Count Eight of Plaintiff’s Amended Complaint brings a
state law malicious process claim against Officers Simmons and
Little, based on the officers having “initat[ed] charges against
the Plaintiff without probable cause for which the Plaintiff was
unlawfully detained and restrained for approximately four
months.”

Am. Compl. ¶ 33.

Plaintiff also alleges that the

charges were later terminated in his favor.

Id.

To establish a claim for common law malicious
prosecution under Pennsylvania law, a plaintiff must show that
“(1) the defendants initiated a criminal proceeding; (2) the
criminal proceeding ended in the plaintiff’s favor; (3) the
proceeding was initiated without probable cause; and (4) the
defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice.”

Merkle, 211 F.3d at 791

(citing Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996)).
Defendants argue that Plaintiff’s malicious prosecution claim
fails as a matter of law because (1) neither Simmons nor Little
instituted criminal proceedings against Plaintiff; (2) the
charges against Plaintiff were supported by probable cause;

56

(3) there is no evidence of malice; and (4) Plaintiff was
admittedly guilty of the crime with which he was charged.

See

Defs.’ Mem. at 17.
Lack of probable cause is one of the elements of
Plaintiff’s claim.
has

See Merkle, 211 F.3d at 791.

As the Court

previously concluded that probable cause existed for

Plaintiff’s arrest, Plaintiff’s malicious prosecution claim
fails as a matter of law, and the Court need not reach the
remainder of Defendants’ arguments.
C.

Punitive Damages
Defendants argue that Plaintiff’s claim for punitive

damages fails as a matter of law because Plaintiff has failed to
establish that any actions taken by Officer Simmons or Officer
Little were motivated by an evil motive or reckless indifference
to Plaintiff’s rights.

Defs.’ Mem. at 30.

Plaintiff responds

that Officer Simmons’ decision to grab Plaintiff and slam him
against a car without cause demonstrates his reckless disregard
for Plaintiff’s rights, and that Officer Simmons’ actions were
retaliation against Plaintiff for filing an earlier lawsuit,
demonstrating an improper motive.

Pl.’s Mem. at 16-17.

Individual state actors sued in their individual
capacities under 42 U.S.C. § 1983 may be liable for punitive
damages.

See City of Newport v. Fact Concerts, Inc., 453 U.S.

57

247, 266-67 (1981); Rankin v. City of Phila., 963 F. Supp. 463,
477 (E.D. Pa. 1997).

However, punitive damages are available on

a § 1983 claim only if the conduct giving rise to the claim was
“motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected
rights of others.”

Smith v. Wade, 461 U.S. 30, 56 (1983).

As discussed above, all of Plaintiff’s claims against
Officer Simmons and Officer Little fail as a matter of law, with
the exception of Plaintiff’s claims against Officer Simmons in
Counts Two and Three of the Amended Complaint: excessive force
and unreasonable search and seizure in violation of the Fourth
Amendment.

The Court will therefore limit its analysis to those

claims.
There is no evidence in the record that Officer
Simmons’ actions in stopping and searching Plaintiff were
retaliation against Plaintiff for filing his previous lawsuit,
which is the only allegation Plaintiff makes with respect to
Officer Simmons’ purported “evil motive.”

However, if a jury

concludes that Officer Simmons did violate Plaintiff’s Fourth
Amendment rights to be free from excessive force and
unreasonable searches and seizures, the jury could also conclude
that Officer Simmons’ actions represent “reckless or callous
indifference” to Plaintiff’s rights.

58

Therefore, the Court will allow Plaintiff’s claims for
punitive damages with respect to Counts Two and Three to move
forward.
VI.

CONCLUSION
For the reasons discussed above, the Court will grant

Defendants’ motion for summary judgment with respect to
Plaintiff’s claims against Officer Simmons and Officer Little in
Counts One, Four, Five, Six, Seven, Eight, Nine, and Twelve of
the Amended Complaint, in addition to Plaintiff’s claims against
Officer Little in Counts Two and Three of the Amended Complaint.
The Court will deny Defendants’ motion for summary judgment with
respect to Plaintiff’s excessive force and unreasonable search
and seizure claims against Officer Simmons in Counts Two and
Three of the Amended Complaint, including Plaintiff’s request
for putative damages with respect to those two claims.
Court will also deny Plaintiff’s motion to strike.
An appropriate order follows.

59

The